Heather Danielle Radar Blount v. James Edward Blount

11/05/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 9, 2024 Session

HEATHER DANIELLE RADER BLOUNT v. JAMES EDWARD BLOUNT

Appeal from the Circuit Court for Shelby County

No. CT-005694-18 Yolanda Kight Brown, Judge

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No. W2022-01722-COA-R3-CV

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This is an appeal from a three-day divorce trial in which both parties presented expert

testimony regarding how to calculate the husband’s income for purposes of paying support.

The husband raises nine issues on appeal regarding proof of marital fault, the valuation of

marital property, and the alimony and attorney fees awarded to the wife. For the following

reasons, we vacate in part and affirm the decision of the trial court as modified.

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

Part, Affirmed as Modified, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ANDY D. BENNETT,

J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Rex L. Brasher, Memphis, Tennessee, for the appellant, James Edward Blount.

Lori R. Holyfield, Munford, Tennessee, for the appellee, Heather Danielle Blount.

OPINION

I. FACTS & PROCEDURAL HISTORY

James Edward Blount (“Husband”) and Heather Danielle Blount (“Wife”) married

in 1999, when both parties were 27 years old. Wife had a master’s degree in education and

a minor in psychology, and she had been teaching at a public elementary school in

Memphis. Husband had a law degree and was working with his father, who was also an

attorney, at the Blount Law Firm, a general litigation and personal injury practice started

by Husband’s grandfather. Wife continued working as a teacher for the first year of the

marriage but then quit working when she became pregnant with the parties’ first child. The

parties would ultimately have three sons born during the marriage, in 2001, 2002, and 2004,

and Wife was a homemaker during that period of time. In 2005, the parties purchased a

home for $398,000. In 2006, Wife went back to work as a teacher at the private Christian

school where the parties’ oldest son was attending. Wife’s salary averaged around

$30,000, but her employment greatly benefitted the family because she received a fifty

percent discount off private school tuition for the three children and provided health

insurance for the family.

Around the same timeframe when Wife went back to work in 2006, Husband’s

father decided to move the Blount Law Firm’s office from Memphis to Collierville. He

purchased an old farmhouse in Collierville that needed renovation. This move would

ultimately have a negative impact on the law practice. Due to unforeseen expenses and

delays with the renovation, and the lack of a client base in Collierville, the firm’s business

decreased after the move. Husband and Wife refinanced their mortgage loan for $400,000

and began making interest-only payments. Around 2009 or 2010, Husband’s father

realized that the move was a mistake and put the building on the market, where it would

remain for nearly a decade. Husband’s father died in 2011. The bank note on the

Collierville property led to additional financial struggles for Husband thereafter. The

lender threatened to foreclose if Husband did not refinance. He was eventually able to

obtain financing through another bank, but then he had “a huge note” on the property. In

addition, the ongoing expenses to maintain the property were very high. The Collierville

property remained on the market throughout this time, with Husband hoping to keep it out

of foreclosure until he could find a buyer. For several years during this timeframe,

Husband and Wife did not pay income taxes to the Internal Revenue Service, as they used

the money to pay the office and household expenses instead.

The parties’ financial situation got even worse around 2017, when their period of

making interest-only payments on their mortgage ended and the principal payments

“kick[ed] in.” The interest-only payments had been about $1,375 per month, and the new

payment amount was around $3,400 per month. In addition, the annual tuition per student

at the children’s private high school (prior to any discount) was over $17,000. Husband

suggested that the parties send the children to a nearby public school to relieve some of the

financial burden on the family, but Wife refused. Their oldest son began his senior year of

high school in August 2018.

Also in August 2018, Wife began having an affair with an old friend from grade

school with whom she had recently reconnected via social media. She began traveling to

Knoxville to stay with her paramour, while telling Husband that she was going to visit

family members there. Eventually, however, Husband discovered Wife’s affair. Wife

informed Husband of her desire to get a divorce and stated that the primary reason she

wanted a divorce was due to their financial issues. Husband was offered a job at a bigger

law firm during this period and decided to take the job in an effort to save his marriage,

given that he had been unable to sell the Collierville building and was struggling

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financially. Husband did very minimal work for the new firm in late 2018 but would

“really start[]” in January 2019. On December 20, 2018, however, after nineteen years of

marriage, Wife filed a complaint for divorce, alleging inappropriate marital conduct and

irreconcilable differences. She sought to be named primary residential parent and asked

that Husband be ordered to pay child support and alimony. One week later, on December

31, 2018, Husband finally sold the office building in Collierville.

In January 2019, Husband began working for the other law firm with a special

arrangement that permitted him to continue operating the Blount Law Firm. The Blount

Law Firm no longer had a physical office, but Husband maintained all of the state filings

for the PLLC, maintained the firm’s website and phone number, and continued advertising.

Husband’s contract with the other firm provided that his percentages of the total fees

recovered on cases differed based on whether the case was brought in through his own

efforts or through the other firm. Husband would receive a larger percentage on cases that

he brought in through the Blount Law Firm. In addition, he was permitted to keep cases

that originated with the Blount Law Firm before he joined the other firm, so he designated

certain cases as exclusively belonging to the Blount Law Firm. Husband worked on those

cases as he saw fit and did not have to pay the other firm any of the fees he recovered on

those designated cases.

Wife had remained employed as a teacher at the private Christian school where the

parties’ children attended for the past thirteen years, but it was a violation of the school’s

code of conduct for her to file for divorce. The crux of the issue was whether Wife had an

inappropriate relationship with someone. After a meeting, she and the school

administrators came to a “mutual decision” that she would not return for the next school

year. Thus, Wife ended her employment at the school in May 2019. In addition to losing

Wife’s annual salary of $33,378, the family also lost the tuition discount and their health

insurance. Beginning in March 2019, however, Husband began receiving attorney fees

from the resolution of two large class action lawsuits that he had been working on for many

years, which he had retained as cases belonging exclusively to the Blount Law Firm. For

one of those cases, Husband received $288,404 in attorney fees (received in three payments

over two years). For the second case, he received $421,863 in attorney fees and expenses.

In the meantime, Husband filed an answer and counter-complaint for divorce,

asserting irreconcilable differences and that Wife was guilty of inappropriate marital

conduct and adultery. He sought to be named primary residential parent and requested an

award of alimony. Wife filed a motion for pendente lite alimony, child support, and

attorney fees. In December 2019, a consent order was entered providing that Husband

would continue to pay all household expenses that he had traditionally paid, which

encompassed everything except the water bill for the marital home. The order stated that

Husband was now also paying for health insurance for the family. Husband, Wife, and the

parties’ children continued to reside in the marital home throughout this period, with

Husband living in the playroom. Another consent order was entered, which stated that the

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parties would take the necessary steps for the children to continue attending the private

Christian school and pay the tuition with marital funds. According to Husband, the Blount

Law Firm received the proceeds from the sale of the Collierville office building in 2019,

totaling around $280,000, which, combined with the class action fees, enabled him to pay

for the tuition and all of these expenses for the family.

In August 2019, Wife began working at another private school, where she was paid

around $30,000 per year. When the Covid-19 pandemic began in early 2020, the school

transitioned to online classes. According to Wife, she was not sure what was going to

happen for the fall semester and started to reevaluate her options during the summer. Wife

decided that the insurance industry was “a good path” and became licensed to sell various

types of insurance. In October 2020, she began working at State Farm.

In November 2020, Wife filed a motion for injunctive relief, asking the trial court

to remove Husband from the marital residence and award her exclusive use of it, noting

increased tension in the home and that Husband was in a romantic relationship as well.

Although Husband initially opposed the motion, he agreed to vacate the marital residence

by December 1, 2020. Husband began renting a home in Cordova and paying the additional

expenses associated with furnishing and maintaining a separate residence. In February

2021, Husband filed a motion to require the sale of the marital residence. He asserted that

the tax appraisal of the marital home was only $387,800, the mortgage balance was

$361,000, and the IRS had an income tax lien on the home for the sum of $152,000.

Husband claimed that the monthly mortgage payment was $3,555 with insurance and the

HOA dues. Thus, he argued that the cost of maintaining the marital home was

“unnecessarily exorbitant” and draining the family’s resources, when the little equity that

existed would be seized by the IRS in any event. Wife opposed Husband’s motion to sell

the home, arguing that he had plenty of money and that the issue could be addressed at the

upcoming trial date. In response to another motion for pendente lite support, Husband

agreed to also pay Wife cash in the sum of $275 per week.

In February 2021, Husband tendered his resignation to the other law firm, and his

last day working there was March 3, 2021. Husband then resumed working exclusively

for the Blount Law Firm. In May 2021, the parties’ middle son graduated from high school,

leaving only the youngest in private school.

The parties’ divorce trial began on June 29, 2021, and it lasted three days. By the

time of trial, both parties were 49 years old and in good health, and they had been married

21 years. Wife continued to reside in the marital home with all three of the parties’ sons,

although two of them had reached the age of eighteen and would be living elsewhere once

college started in the fall. The youngest son was about to start his junior year of high

school. Husband had only been working full-time for the Blount Law Firm for three

months, and Wife had left her employment with one insurance agent and gone to work for

another agent with State Farm just two months before trial. Thus, determining the parties’

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incomes was a difficult matter. Both parties presented expert witnesses regarding how

Husband’s income should be calculated and agreed that it was the biggest issue before the

court. Wife sought an award of alimony in futuro of $5,000 per month in addition to

transitional alimony of $1,000 per month until the sale of the marital residence. Husband

claimed he could not afford to pay any alimony given the amount he had expended on

support for the family during the divorce proceeding and the amount of marital debt he

proposed to assume after the divorce.

Wife testified that she had “ma[d]e a sacrifice” by working at the private school

throughout the marriage because she could have been making more money at a public

school, but her “primary concern” was the children. She said she had desired to leave her

employment at the private school during the marriage because she “wanted to do something

else” and “just wanted something different,” but she did not want the children to be

removed from the school. Wife also explained that the private school did not require a

teaching certification, so she did not maintain her teaching license while employed there

and would have to test again in order to renew it. Rather than taking the steps to reactivate

her teaching license, Wife “just looked elsewhere.” She testified that she was currently

working for State Farm at “a base salary of 24,000 plus commission.” When asked about

her decision to leave the field of education for this job, given her master’s degree in

education, she testified that she had the potential to earn more money in the insurance

industry. She explained that she “had probably hit the maximum I was going to make,

roughly around 30,000,” as a teacher, but she had “the opportunity to make past that

30,000” at her new job. She explained that she would be earning bonuses and commissions

beyond her base salary. Wife noted that when she was employed with the previous

insurance agent, she was told that she would be making between $45,000 and $60,000 in

her first year of selling insurance. However, Wife said that agent was not doing the things

he had promised so she was “going nowhere” and decided to leave when she had the

opportunity to take a position with a higher base salary. When asked if she could earn the

same projected amount of $45,000 to $60,000 in her first year with her current agent, Wife

said she did not know, but that she was putting in all the time and effort she could. She

testified that she was “still learning,” but she “definitely” intended to continue selling

insurance. Still, she stated that her earning capacity would never be close to that of

Husband.

Wife testified that she was willing to stipulate to grounds for divorce, but Husband

was not. She believed both parties were equally entitled to a divorce because both had

engaged in wrongdoing. She testified that the biggest problem the parties had during the

marriage was related to money. Wife said she did not know how much money Husband

made, but she “was generally told we never had money.” She described several occasions

in which her debit card was declined or the parties’ utilities were turned off. Wife said she

had begged Husband for years to give up the Collierville office building that his father had

purchased because it was “sucking the life out of us” and to get a job at another firm where

he would have a dependable paycheck. Wife conceded that she began an inappropriate

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relationship with her paramour but claimed the marriage was already “beyond repair” at

that point.

As for the standard of living during the marriage, Wife described it as middle class.

They employed a housekeeper “[o]ff and on” and purchased two boats during the marriage.

Wife also testified that Husband had a Peloton bike and several expensive bikes and related

clothing, and he had his suits tailor-made. She conceded that she had taken trips with her

paramour and spent money on hotel rooms, gas, and food. She also acknowledged that she

and her paramour had discussed marriage and her moving to Knoxville, but she testified

she would not leave until the youngest son graduated from high school.

When asked about Husband’s request to sell the marital home, Wife testified that

she did not want to sell the house until the youngest son graduated from high school in

May 2023 because he suffered from anxiety. Wife sought child support of $2,100 per

month and retroactive child support from the date when Husband vacated the marital

residence. However, she acknowledged that Husband had been paying all expenses for the

household except the water bill and gas for her vehicle. Wife had just leased a new vehicle,

a 2021 Infiniti QX50, and Husband was paying the majority of that payment with Wife

only “mak[ing] up the difference” in the cost for the new vehicle. He was also paying Wife

$275 per week for “support.”

Wife submitted an affidavit of income and expenses, showing that she earned a

gross monthly income of $2,339.15 from State Farm ($28,069.80 annually). After

withholdings, she had a net monthly income of $2,019.59. She listed her total monthly

expenses anticipated after the divorce at $7,767 (with an additional $1,000 in expenses

until the marital residence was sold). Wife claimed a monthly deficit of $5,747.41. She

also claimed an inability to pay her attorney fees, which exceeded $75,000. At least

$22,637 of her fees and expenses had already been paid with marital funds.

Husband was the only other witness to testify besides the expert witnesses. He

testified that he and Wife were getting a divorce because of her affair and that he was

originally opposed to getting a divorce. When asked by his counsel how he discovered

Wife’s affair, Wife’s attorney objected on the basis of relevancy, arguing that Wife had

already admitted to having the relationship. In response, Husband’s counsel argued that it

was relevant to the issue of inappropriate marital conduct. The trial court ruled that this

questioning was not relevant because Wife had already admitted to the relationship, so the

court advised counsel to “move on from it.” Husband was then asked whether he had

“hope” for his marriage even after he found out about the affair. Again, Wife’s counsel

objected on the basis of relevancy, noting that both parties wanted a divorce. The trial

judge stated that unless there was some relevance to an issue involving the child, she did

not want to spend time on something that was unnecessary. Husband’s counsel responded,

“I understand. Your Honor, I’ll just move on. That’s fine. I’ll move on.” Husband went on

to testify that Wife paid for any trips she took with her paramour with marital funds because

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she did not have any separate property. He testified that he never had an affair while the

parties were together and that he did not begin his current relationship until after he read

the deposition of Wife’s paramour in May 2020. However, Husband admitted to spending

marital funds on his paramour as well.

Regarding his work history, Husband testified that he began working for the Blount

Law Firm when he was in college. He joined the firm once he earned his law degree and

maintained a general litigation practice doing primarily personal injury work throughout

the parties’ marriage, even after his father died. He said his employment situation only

changed in late 2018 when he was “trying to save [his] marriage.” Husband explained that

he was offered a job at the other firm at a point when he had no purchaser for the Collierville

building and Wife had just informed him that she wanted a divorce primarily due to their

financial issues. He said he decided to try working at the other firm in an effort to resolve

his financial issues so Wife would want to stay married. He was placed “on counsel” in

late 2018 and did very minimal work for the other firm but really started working there in

January 2019, although he also kept the Blount Law Firm open “on paper” and continued

his advertising efforts. Husband received W-2’s from the other law firm showing that he

earned $678 in 2018; $126,067 in 2019; and $214,121 in 2020.

Husband testified that he tendered his resignation to the other firm in February 2021

and ended his employment there on March 3, just three months before trial. He explained

that the work environment was miserable at the other firm because it was a very high

volume practice that he “was not accustomed to” after practicing for twenty years at the

Blount Law Firm. Husband was an associate attorney at the other firm and was expected

to handle between 200 and 300 cases at a time. He testified that he simply could not keep

up with that demand. He explained that his emotional state had suffered because of the

divorce, and it was hard for him to focus on his work and handle that type of workload, so

he feared that he was going to commit legal malpractice. When asked if he was presently

working fulltime, Husband said, “I try to, yes[.]” He said that he had cases and clients. He

explained that he was initially practicing out of his house because, at that point in early

2021, the Covid-19 pandemic had made it difficult to meet with people in person and he

really did not need to bear the expense of maintaining a separate office space at first.

However, Husband had just leased an office space in a commercial building about a month

before trial at a cost of $875 per month.

Husband agreed that the youngest son should finish his high school education at the

private school, and he was paying the tuition payment of $1,600 per month. However,

Husband noted that the loss of Wife’s employment at the school had greatly increased the

parties’ expenses for tuition and added a new cost for health insurance. Although Wife

eventually secured other employment, he said she had not used any of her earnings to pay

for tuition. Husband also explained that pursuant to the 2019 consent order, he was still

paying “basically all the household expenses except for the water bill[.]” He testified that

his receipt of the proceeds from the sale of the Collierville office and the attorney fees from

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the two class action lawsuits enabled him to pay all of these expenses during the divorce

litigation. For instance, he testified that the money from the sale of the Collierville office

was spent on taxes, tuition, purchasing a vehicle for the parties’ son, and the household

expenses, so none remained at the time of trial. Husband said he was concerned about his

ability to continue paying such expenses going forward because his income from his law

practice was not consistent and he worried about shortfalls occurring in the future. He also

noted that the parties owed the IRS $195,288 for tax years dating back to 2010. Husband

and Wife had jointly filed income tax returns for tax years 2015 through 2019 through an

accountant. He had not yet filed his tax return for 2020. Husband testified that the net

income shown on the parties’ tax returns for 2015 through 2018 was representative of the

average he earned throughout the marriage. He described their standard of living as “more

than we could afford.” He agreed it was middle class but reiterated that their financial

situation was “[p]recarious.”

Husband testified that the two large attorney fee awards he received beginning in

2019 were from class action lawsuits he had worked on through the Blount Law Firm for

many years, and he was finally able to recover on those during the divorce proceeding.

The first class action suit, referred to as the “Methodist” case, was originally filed in 2007.

Husband had served as counsel on it since the day it was filed and worked on the case over

fourteen years. The fee of $408,735 (plus expense reimbursement) was received in

November 2020. Husband submitted as an exhibit at trial the joint declaration of class

counsel that was filed in support of the fee award, summarizing the amount of time and

effort put into the case over the years of litigation. He also submitted the docket report for

the case as an exhibit, showing the various pleadings and orders that were filed over the

years. He testified that he did most of the work on this case and that it consumed much of

his life for 13 years. The second case, called the “Cemetery” case, was also a class action

lawsuit. The total fee awarded in this case was $288,404, but it was received in three

payments from multiple defendants rather than all at once. Husband had worked on this

case for five years and again said he “did a huge amount of work,” filing motions, taking

depositions, attending all hearings, and sitting through a month of trial. He explained that

these were not contingency fee cases and that the courts had approved the fee amounts

based on various factors. When asked if this type of large class action fee was regularly

received by the Blount Law Firm, Husband said, “No, not at all.” He noted that these were

the only two class action lawsuits that he had been involved in. He had never received

individual fees of this type and magnitude at any point in his career, although he

acknowledged working on one case with his father with a “pretty good recovery.” He

testified that he currently had no cases for which he had any reasonable expectation of

receiving fees of that magnitude.

Husband also submitted a statement of his income and expenses. For reasons that

will be explained in greater detail below in our discussion of the expert testimony, Husband

calculated his average monthly gross income over a five-year period at $16,762. After

deducting the estimated amount of his taxes, he calculated his net monthly income at

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$12,571. He listed anticipated monthly expenses of $10,839.30. This would leave

Husband with $1,731.70 remaining. However, Husband noted that he was currently also

responsible for paying the mortgage on the marital residence, which was over $3,000, in

addition to a monthly payment of $535 toward the parties’ past due taxes, pursuant to an

agreement the parties negotiated with the IRS in 2019. With these two current expenses

included, Husband was at a monthly deficit of $1,938. He testified that the 2019 consent

order also presently required him to pay all household expenses for the marital residence

except the water bill, which included home repairs, utilities, housekeeper, health insurance,

Wife’s car note, auto insurance, taxes, vehicle expenses for the children, medical expenses,

etc., and he was also paying for the groceries until he started paying $275 per week directly

to Wife three months before trial. Husband explained that he had continued paying these

expenses pursuant to the 2019 consent order even after he vacated the marital home in

December 2020, which created new expenses for his own rent, utilities, insurance, etc. He

stated that he was simply unable to continue making all these payments because it was “too

much” and he could no longer support two separate residences. He noted that he had paid

all of the expenses during the divorce litigation through his income from the Blount Law

Firm, the other firm, and the two large fee awards he received. However, he reiterated that

the funds were used on private school tuition, cars for the children, his business expenses,

and living expenses for the family, adding, “everything that’s been paid has been paid out

of those funds.” He was not aware of any financial contribution that Wife had made to the

household or living expenses, aside from the water bill, for the past three years.

The parties’ only assets of significant value were two cemetery plots valued at

$12,000, Husband’s pickup truck valued at $15,000, two boats valued at $12,000 and

$9,000, Wife’s retirement account valued at $82,439, an IRA valued at $3,907, and

Husband’s law firm operating account, which had a balance of $45,000. Because the

marital home had little equity and was subject to tax liens, Husband repeated his request

for the trial court to order the sale of the house because the parties simply could not afford

the extra expense of maintaining it. He testified that the youngest son was “more resilient

than his mother gives him credit [for]” and “made himself comfortable” when staying at

Husband’s rental house.

Husband had already paid a portion of Wife’s attorney fees and proposed that each

party be responsible for their own remaining fees in light of the fact that Wife was the

reason the parties were getting a divorce. He testified that he had also paid $35,000 to

$45,000 for his own attorney fees, $18,000 for his own expert witness, and $5,000 for

Wife’s expert. He testified that there was no way he could afford to pay his own attorney

fees in addition to hers. He did agree to assume essentially all of the other debt associated

with the marriage, including the IRS debt. Husband agreed to pay child support but did

not believe that he should be required to pay alimony.1

1

During cross-examination, Wife’s counsel asked Husband if his counter-complaint for divorce

had requested alimony. Husband conceded that it did but said he did not really understand the significance

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Wife had engaged Michael Pascal, a certified valuation analyst, to prepare a

financial forensic report of Husband’s income for support purposes. To begin his

testimony, Mr. Pascal summarized his professional opinion that when making a

determination regarding variable income in support cases in Tennessee, it is appropriate to

record the income when it is received, because that is when the income is “earned,” and

then the trial court has discretion to average the individual’s variable income over a period

of years. As support for his opinion that income should be “based on the year in which

cash payments are received,” Mr. Pascal cited the definition of a “contingent fee” from

“Law.com.” On the issue of averaging, Mr. Pascal cited one particular case from the

Tennessee Court of Appeals that had been remanded for a trial court to set child support

“by averaging [the parent’s] income in the number of years determined by the trial court to

be the most appropriate for predicting future income[.]” Smith v. Smith, No. M2000-

01094-COA-R3-CV, 2001 WL 459108, at *13 (Tenn. Ct. App. May 2, 2001).

Applying this approach to Husband’s income, Mr. Pascal first opined that the sum

of $421,863 he received from the Methodist case should all be attributed to the year 2020

and included in Husband’s income for that single year. For the Cemetery case, Mr. Pascal

similarly attributed all of the income to the years when the fees were received, totaling

$288,404 in three amounts received between March 2019 and March 2021. He

acknowledged that the cases had been filed in 2007 and 2014 and that Husband had “spent

some initial time and money filing” the cases, but he maintained that “the contingent

attorney fees were not earned until the cases were resolved.” Thus, Mr. Pascal included all

of the class action fees as income to the Blount Law Firm in the years received, then

reduced that annual revenue by the firm’s operating expenses, and added back depreciation,

to reach an “adjusted total” income for the Blount Law Firm. For 2018, the year before

the divorce, that adjusted total income was $95,644. However, for 2019, Mr. Pascal

calculated the firm’s income at $142,041, and for 2020, he calculated it at $464,296. Next,

Mr. Pascal added Husband’s W-2 income from the other firm to his income from the Blount

Law Firm during the applicable years. Using these combined figures, Mr. Pascal calculated

Husband’s 2019 total income at $268,108, and his 2020 income at $678,417.

To determine Husband’s income for purposes of child support and alimony, Mr.

Pascal proposed averaging Husband’s income over either two years (2019-2020) or three

years (2018-2020). The two-year average for 2019 and 2020 equated to annual income for

Husband of $473,263, or $39,439 per month. The three-year average equated to annual

income of $347,616, or $28,968 per month. As an alternative, Mr. Pascal suggested an

even higher number if the trial court determined that the deduction Husband took on his

of that request in the complaint because he is not a divorce attorney. Husband’s counsel then objected and

stated that Husband was not seeking an award of alimony and had never requested it beyond boilerplate

language in his original filing.

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tax return for “cost of goods sold” in 2019 was not supported by sufficient proof.2 In that

case, Mr. Pascal calculated Husband’s income at a two-year average of $516,144 annually,

or $43,012 per month, and for three years, $376,203 annually or $31,350 per month.

(Wife’s proposed child support worksheet utilized this amount, listing Husband’s gross

monthly income as $43,012.) Mr. Pascal testified that a two-year average was most

appropriate in this case. He opined that two or three year averages are more indicative of

current and prospective income while four or longer would get further away from

“prospective income.” Mr. Pascal noted Husband’s deposition testimony that he had “a

whole bunch of work to do” when he worked for the other firm, and still did, so Mr. Pascal

concluded that Husband “has the ability to earn this income going forward.” He said he

found no basis for Husband’s claimed income of around $16,000 per month. Overall, Mr.

Pascal suggested that his report was “a reasonable reflection” of Husband’s income, but if

the court found a higher number, that would not be unreasonable.3

On cross-examination, Mr. Pascal acknowledged that language he relied on in the

Smith case discussed averages of two to four years “because that was the scope of the proof

that was offered” in that particular case. When asked about another case stating that

variable income should be averaged over as long a period as circumstances permit, Mr.

Pascal said he had not read the case and questioned what was meant by the phrase “as the

circumstances permit.” Regarding his decision to include all of the attorney fees from the

class action suits in the years they were received, Mr. Pascal reiterated his opinion that “for

support purposes, when you receive the money is when it’s earned.” He said he did not

see any records showing when the work was done, but even assuming that Husband worked

on a lawsuit for years, Mr. Pascal would record all the income when it is received. He said

the IRS also views income as earned when it is received. Mr. Pascal acknowledged that

the “primary difference” between his report and the one prepared by Husband’s expert was

their treatment of the two class action fees, as Husband’s expert proposed spreading or

averaging the fees from the two suits over the years since they were filed and attributing a

portion of the fee to each of the years the case was pending. Mr. Pascal criticized this

approach, stating that Husband and his expert “provided no evidence that any substantial

2

Mr. Pascal explained that he questioned the deduction of $85,763 on Husband’s tax return for

“cost of goods sold” in 2019 because a law firm does not sell inventory or have a cost of goods sold. When

asked about this deduction in his deposition, Husband deferred to his CPA. Finding no support for the

deduction, Mr. Pascal proposed adding the amount back.

3

Mr. Pascal also testified that he had reviewed the deposits into Husband’s law firm operating

account and determined that they were higher than what he reported as income on his tax returns on

Schedule C. He said that Husband’s CPA was asked to produce his work papers regarding how he

determined the firm’s gross revenue and did not provide them. Consequently, Mr. Pascal suggested that

Husband’s reported income on his tax returns was not accurate and was much less than what was “actually

received” by him. For example, he stated that in 2018, Husband’s Schedule C showed income of $216,227,

but his Quicken report showed $377,133, and his deposit detail showed $459,072. Mr. Pascal said he

ultimately decided to use the tax return amounts in his calculations to be “conservative,” but he simply

noted these discrepancies to show that his income averages would have been higher if he had utilized the

other figures.

- 11 -

legal work was done beyond the initial filing until the resolution of the case.” He also

noted that such an approach would utilize averaging the two fees in addition to averaging

Husband’s income over a period of years, resulting in “averaging on averaging” and

“further diluting income.”

Mr. Pascal conceded that he was not aware of any other class action lawsuits that

Husband had “in the pipeline.” Still, he suggested that such suits might be “required of

him” in the future. When asked if he had any basis to believe that Husband would earn

fees of that nature in 2021 or 2022, Mr. Pascal responded that he had no basis to know that

he would not. He stated that Husband is “in the business of class-action suits, personal

injury suits,” and “could just as easily make it as not make it.” However, he admitted he

was not aware of Husband serving as counsel on any other class action lawsuits. Husband’s

counsel questioned Mr. Pascal about his decision to attribute a monthly income to Husband

of over $39,000 when he calculated his income in 2018, just before the divorce, at roughly

$96,000 for the entire year, or $8,000 per month. Mr. Pascal admitted the accuracy of these

figures for 2018 but emphasized that his approach looked at a two-year average, using only

2019 and 2020, and it was higher because of the two class action fees. When asked about

prior years, however, Mr. Pascal calculated Husband’s 2016 income from Blount Law Firm

at $83,941 and his “income for support purposes,” with depreciation added back, at

$98,836. For 2017, he calculated net income from his law practice at $89,258 and his

income for support purposes at $96,471. Thus, Mr. Pascal conceded that Husband had

earned less than $100,000 in each of the three years prior to the divorce. Mr. Pascal again

noted that his analysis did not use those years.

Finally, the trial court heard testimony from Husband’s expert, Cynthia MacAulay,

who was a certified public accountant, certified in financial forensics, certified valuation

analyst, and certified divorce financial analyst. She testified that she was asked to analyze

Husband’s income and look at his ability to pay child support. Ms. MacAulay testified that

the income for the Blount Law Firm from 2015 through 2018, the years before the divorce,

ranged between $75,000 and $89,000 based on the tax returns.4 Her approach to allocating

the class action fees, which Husband started receiving in 2019, differed from that of Mr.

Pascal. She divided the sum of $421,863 received in the Methodist case by the thirteen

years the case was pending so that $30,868 of the fee was allocated to each year between

4

Ms. MacAulay was asked about the difference between Husband’s deposits and his tax returns.

She had reviewed the tax returns, bank statements, business records, and Quicken detail and prepared

various calculations and scenarios using those figures. However, she did not believe that the deposits were

reflective of Husband’s true income. Ms. MacAulay explained that Husband prepared his own Quicken

entries and that there were several “transfers back and forth” from his IOLTA account that were put into

his operating account and then “put back” or “backed out.” She also noted that he had started using the

account for personal expenses. Thus, Ms. MacAulay did not believe the deposit detail was a reliable source

of information regarding his income and believed this explained the differences on the tax returns. She

believed the tax returns provided a more accurate calculation of Husband’s income and noted that Mr.

Pascal chose to use the tax return figures in his report as well.

- 12 -

2007 and 2020. She used the same procedure for the Cemetery case, allocating the total

fee of $288,404 over the number of years the case was pending back to 2014, for a total of

$52,360 assigned to each of those years. Accordingly, for the years when both class action

lawsuits were pending, Ms. MacAulay added $83,228 to Husband’s other income for each

of those years. She testified that it was appropriate to average the fees in this manner for

several reasons. She explained that this was not income regularly received, as Husband

had not worked on any other class action lawsuits, and these two cases lasted for lengthy

periods of about thirteen and six years. She noted that he did not have any similar cases

“going forward.” Ms. MacAulay did not believe it was appropriate to include all of the

income when received because that approach did not represent what Husband had made

historically. Thus, she allocated the fees over the life of the case.

In calculating Husband’s income for each year, she had also deducted the operating

expenses and the cost of goods sold and added back depreciation. Ms. MacAulay had also

added Husband’s W-2 income from the other firm. Thus, Ms. MacAulay calculated

Husband’s total gross income for recent years as follows: $165,920 in 2015; $182,064 in

2016; $179,699 in 2017; $179,550 in 2018; $154,617 in 2019; and $309,817 in 2020. After

calculating this annual income, Ms. MacAulay explained that she still found it appropriate

to consider an average of Husband’s income because it varied from year to year. She

calculated two different options, explaining that when someone’s income varies from year

to year she typically uses a three to five year average depending on the facts of each case.

Looking at five years, from 2016 through 2020, Ms. MacAulay calculated Husband’s

average annual income at $201,149, or $16,762 per month. Alternatively, using a three

year average from 2018 to 2020, she calculated his average annual income at $214,661, or

monthly income of $17,888. Ms. MacAulay opined that the five year average was the most

appropriate in this case because two of the most recent years were “extraordinary years”

and should not, in her opinion, constitute two out of the three years considered.

Ms. MacAulay testified that she had not often used a two year average in her

experience, but she might opt to do so if, for example, considering additional years would

not show “a reasonable basis of what [the individual’s] income is going to be going

forward.” She opined that Mr. Pascal had no reasonable basis for using two years when

the two he selected did not reflect Husband’s regular income. She said those two years

involved two “extraordinary cases” that “were not typical.” She emphasized that the reason

the experts were trying to figure out Husband’s income was to determine his ability to pay

child support and alimony. Ms. MacAulay explained that if you took 2019 and 2020 “off

the table” and forgot about those years because of the two large fee awards he received, the

remaining years would show Husband’s “regular income.” She opined that his income

from 2015 to 2018 was more indicative of “what his regular income would be,” around

$8,300 per month, and yet Mr. Pascal suggested calculating his income as high as $43,000

per month. Aside from when he received the class action awards, Ms. MacAulay was not

aware of any point historically when Husband had received such income, and she did not

expect him to receive it going forward.

- 13 -

Considering Ms. MacAulay’s five-year average of Husband’s monthly income at

$16,762 per month, she estimated that he would owe taxes of $4,191 per month, leaving a

net income of $12,572 per month. At the time of her calculation, Husband had claimed

expenses of $15,176 per month. She also calculated that he would owe child support of

$1,711 per month. Ms. MacAulay concluded that this resulted in a monthly deficit for

Husband of $4,315, with no consideration of any alimony award. She noted that a recent

change to the mortgage payment since her report would alter this amount by approximately

$670, but in any event, Husband was still “running a deficit” using either figure. She

further noted that Husband’s five-year average net income of the Blount Law Firm without

considering the two class action fees or his W-2 income from the other firm was only about

$13,000 per month. She said that a five year average without the two large fees but with

the W-2 income from the other firm was about $19,000 “before taxes.”

At the conclusion of the three-day divorce trial, on July 1, 2021, the trial judge took

the matter under advisement. She stated that the parties were welcome to submit proposed

findings of fact and conclusions of law if they desired to do so, but it was not required. In

August 2021, Husband submitted proposed findings of fact and conclusions of law. When

no final order was forthcoming by November, Husband filed a petition to modify the orders

on temporary pendente lite support. He stated that he was still paying all the bills for the

marital residence, Wife’s car note and insurance, health insurance, boat expenses, and

private school tuition, which he calculated as totaling $7,240 per month, not to mention his

own expenses for his residence. He noted that when the 2019 consent order was entered,

he was still residing at the marital residence and Wife was still working as a teacher with a

lower earning capacity. He also pointed out that the calculations of his income at trial

included the two class action suits and was not consistent with the income he earned during

the marriage or in the months since the trial ended. Thus, Husband contended that he could

no longer pay the amount of pendente lite support previously ordered, and he asked the

trial court to reduce or terminate his obligation. On the same date, Husband also filed a

motion to set a status conference “so that the parties may know when to expect a final

ruling.”5

The record does not reflect any action taken on Husband’s petition to modify the

support order in the months that followed. In January 2022, Husband’s counsel moved to

withdraw, and the trial court granted the motion. In February 2022, Husband filed a pro se

“Motion to Render Decision.” He noted that the divorce trial ended seven months earlier,

on July 1, 2021. He cited Tennessee Code Annotated section 20-9-506, which provides,

“When any judge of any district tries a case without the intervention of a jury, whether the

5

Thereafter, Wife filed a petition for scire facias and citation for civil contempt, asserting that

Husband had canceled the cable television service at the marital home and owed $3,000 for uncovered

dental expenses, $1,000 for a school trip for their son, over $5,000 on the mortgage, and various other

expenses. She asked the court to incarcerate and/or fine Husband until he purged his contempt.

- 14 -

judge is required to reduce the judge’s finding of facts to writing or not, the judge shall be

required to render the judge’s decision and have judgment entered in the case within sixty

(60) days from the completion of the trial.” He also cited a Tennessee Supreme Court Rule

providing that no case may be held under advisement in excess of sixty days absent the

most compelling of reasons. Tenn. Sup. Ct. R. 11, § III(d). Thus, Husband “respectfully

request[ed]” that the trial court render its decision.

On March 2, 2022, the trial court issued “Conclusions of Law and Findings of Fact,”

setting forth the trial court’s rulings and directing the parties to prepare a final divorce

decree and permanent parenting plan consistent with those findings and conclusions.

Therein, the trial court found that both parties were entitled to a divorce and declared them

divorced. Regarding Wife’s earning capacity, the trial court found that she “voluntarily

decided to leave her job” in the education field, as there was some uncertainty after Covid-

19 but the school had transitioned to virtual learning and there was no proof that she was

in jeopardy of being terminated. The trial court also found that Wife could have taken

steps to renew her teaching certificate to teach in public schools, as she noted during her

testimony that she could have made more money at a public school. The trial court

acknowledged that Wife had “secured employment that has the potential to earn at or more

than what she made as a teacher,” but it found that her decision to leave the second private

school was not reasonable in light of the parties’ financial circumstances and her obligation

to support her child. Therefore, the trial court found Wife voluntarily underemployed.

However, the trial court imputed income to Wife only at the level of her income at the

private Christian school where she worked during the marriage, stating that this was “a

good indicator of her earning potential and not the speculative amount of what she could

possibly earn at some point in the future.”

Next, the trial court addressed Husband’s earning capacity. Regarding the fees from

the two class action lawsuits, the trial court adopted Mr. Pascal’s approach of assigning

them all to the years in which they were received. The court noted the testimony of Ms.

MacAulay that the fees should be spread out over the lifetime of the cases because this

income was not regularly received, Husband worked on the cases for 13 and 6 years, he

did not have any other class action suits, and the fees did not represent his historical income.

The trial court agreed that “[t]hese two cases do not represent fees incurred regularly.” It

found that there was “no proof presented as to Husband having similar cases in the pipeline,

[and] no proof refuting Husband’s contention that outside of these two cases, the only other

good recovery was on a case in 2010.” Still, the trial court noted Mr. Pascal’s reliance on

the definition of a “contingent fee” and the fact that it is not earned until the case is

resolved. The trial court stated that it was unable to accept the conclusion of Ms. MacAulay

and was instead “persuaded by Pascal’s opinion that fees are earned at the time they are

received based on the definition of contingency payments that are due and payable only if

there is a successful conclusion of the legal work[.]” It found that “[a]veraging the fees

earned over the life of the case until the fees are paid is not appropriate as they were not

yet earned and dilutes the income and especially in light of the fact that no proof was

- 15 -

provided as to what time Husband spent on the case for each year since each case was

filed.”

Next, the trial court proceeded to calculate Husband’s income for each year.6

Regarding the “cost of goods sold” deduction taken by Husband in 2019, the trial court

recognized that Mr. Pascal questioned the deduction because “attorneys don’t sell

inventory” and Husband failed to provide support for it when requested. The court noted

that Husband sold his office building at the end of 2018, worked primarily for the other

firm in 2019, and presumably would not have had major overhead or expenses. The trial

court rejected Husband’s suggestion that the amount was “probably operating expenses”

instead of cost of goods sold. Because Husband failed to supply the necessary information

to verify his position, the trial court declined to consider the deduction and added the

amount back to Husband’s income. Thus, for each year, the trial court calculated the

income of the Blount Law Firm, deducted operating expenses, and added Husband’s W-2

income from the other firm for the years it was earned. The trial court listed its calculations

of Husband’s annual income as follows: $83,941 in 2016; $89,258 in 2017; $89,779 in

2018; $344,348 in 2019; and $668,894 in 2020.

Finally, the trial court considered the issue of averaging Husband’s variable income.

It noted Ms. MacAulay’s testimony that three or five years should be used while Mr. Pascal

opined that two or three years was appropriate. The trial court said that it had accepted Mr.

Pascal’s opinion on other issues but did not “to the extent that he averages over 2 or 3 years

as he has no factual basis for his opinion that Husband will make the same in 2021 or 2022

and Husband’s income has varied from 2015-2019.” The trial court utilized a five-year

average and calculated Husband’s average annual income at $255,244, or $21,270.33 per

month.7

Considering these figures in its discussion of the relevant statutory factors, the trial

court proceeded first to divide the marital estate. The trial court calculated the total value

of the marital assets at $611,294.98 and the marital debts at $548,744.60. Omitting the

assets allocated to the children, the trial court divided the marital estate as follows:

6

The court found Mr. Pascal’s testimony persuasive regarding the gross receipts reflected on

Husband’s tax returns being unreliable when compared with the firm’s deposit details and Quicken records.

However, like Mr. Pascal, the trial court ultimately decided to “take the conservative approach” and utilize

the income reported on the tax returns in its calculations.

7

For comparison, the court noted that this amount was “approximate” to the amount calculated if

the court added Husband’s average annual W-2 income at the other firm ($170,094) to the average historical

income Husband had earned working exclusively at the Blount Law Firm in 2016 and 2017 ($87,433),

which would total $257,527 annually, or $21,460 per month. The trial court found Husband voluntarily

underemployed. It found that he voluntarily left his employment at the other firm, although it noted his

testimony that he returned to work exclusively for the Blount Law Firm because of his unmanageable

workload and his emotional state due to the divorce. The court stated, “Husband’s first obligation is to

provide support to his child and to Wife and his own needs must be balanced with the need for support and

maintenance and the Court has the authority to impute income to Husband based on his earning potential.”

- 16 -

DIVISION OF PROPERTY

Assets Vatue Husband Wife

Vehfcles

12014 Ford F150

2C'ID roalgnr.s

$ 15,000

• ••• Mh

A.Lete•ay.

$ 1.5,000

a '1 rtrtn

2023. Infinity CtX50 Lease $ - $ - $ -

2001 McGregor 26X Sailboat $ 9,000 $ 9,000

Retirement Accounts

E-Trade IRA (H) 42202 $ 3,907 $ 3,907

John Hancock $ 82,439 82,439

Personal Property

Household furnishings, jewelry, silver and china $ 15,000 $ 7,500 $ 7,500

and camping equiprnent

Dissipation of Assets

Husband 5,00D $ 5,000

Wife $ 1,305 1,305

Cash and Bank Accounts

Bank Accounts for Husband and Wife

Bank Tennessee Checking 42500 $ 210

Regions Life Green Checking 49427 $ 434

Bank Tennessee Checking 46000 $ 45,000 $ 35,000 $ 10,000

Business Bank Accounts

Bank Tennessee Escrow/49200 Client Funds $ - $ - $ -

Bank Tennessee Escrow 45200 Client Funds - $ - $ -

1

Real Property

10761 Whisper Sage Drive Collierville, TN 38017 $ 410,600 $ 205,000 $ 205,000

Two Cemetary Plots Memphis Funeral Home $ 12,000 $ 12,000

SUB TOTALS $ 61.1,294.9.9 $ 292,407 $ 318,244

100% 48% 52%

Debt

Mortgage on Collierville Property $ 351,161 $ 351,161 00

IRS Tax Debt $ 195,288 $ 195,288

Synchrony Mastercard 41622 $ -

Discovery Card 07304 $ 1,332 $ 1,332

Regions Credit Card 48091 $ 964 $ 964

Debt Total 1$ 548,744.60 $ 546,449.00 L $ 2,296.00

Thus, considering the marital debt, Wife received a far greater share of the marital estate.

The trial court noted Husband’s request to sell the marital home but found that Wife’s

request to remain in the home until their son graduated was reasonable. It directed the

- 17 -

parties to place the marital residence on the market in April 2023. Any debt remaining

after the sale of the property would be the responsibility of Husband.

The trial court adopted Wife’s parenting plan and addressed the issues of support.

It calculated Husband’s child support obligation at $1,693 but declined Wife’s request for

retroactive support due to his payment of the family’s expenses.8 As for his ability to pay

alimony, the trial court found that Husband had reasonable current expenses of $14,509,

but the court found that this amount included $3,669.70 attributable to the marital home,

which Husband would no longer have, so it deducted that amount. However, he would

now owe child support of $1,693. Utilizing its calculation of Husband’s earning capacity

at $21,270.33 per month, the trial court found that Husband would have a surplus or

“disposable income” of $8,738 each month. The trial court found that Wife was

economically disadvantaged, and her earning capacity would “never be close” to

Husband’s even with the anticipated amount she hoped to make as an insurance agent. It

found that she would be unable to achieve an earning capacity that would permit her

standard of living after the divorce to be reasonably comparable to the standard of living

enjoyed during the marriage or the post-divorce standard of living expected to be available

to Husband. Thus, the court found that rehabilitation was not feasible. It also found that

both parties were at fault for the divorce, and Wife contributed to Husband’s earning

capacity during their 21-year marriage. The court found that Wife had current household

expenses of $8,767 with the current mortgage payment, and she would have anticipated

expenses after the sale of the marital home of $7,767. Considering her imputed earning

capacity of $2,781.50 per month, and the child support award she would receive, the trial

court calculated her “current need” at $4,292.50 per month until the marital residence sold,

and $3,295.50 per month based on her expenses thereafter. Considering its finding that

Husband would have “disposable income” of $8,738 per month, the court ordered him to

pay $3,300 per month in alimony in futuro in addition to $1,000 per month in transitional

alimony until June 2023.

Finally, the trial court found that Wife had already paid her attorney $16,900 either

from marital funds or payments by Husband, and she sought alimony in solido for attorney

fees and expenses totaling over $60,000. The trial court found that there was no objection

to the reasonableness of the fees, only who should pay them. It found that Husband had

paid $60,000 in fees between his attorneys and expert, and he paid $5,000 for Wife’s

expert. The court found that “Wife has a need and Husband has the ability to pay” but

stated that it had also considered “the fact that Wife is also at fault for the divorce and

Husband is paying the IRS debt from joint tax returns.” The court further noted “protracted

8

The trial court found that the expenses Husband was paying included the mortgage payment,

homeowner’s association dues, homeowner’s insurance, internet cost, phone and cable/satellite service,

home repairs, alarm system, housekeeping, the majority of Wife’s vehicle lease, costs associated with the

vehicles driven by the children, including gas and insurance, $275 per week to Wife, groceries for Wife

and the children, medical insurance premiums and copays, optometry and dentistry bills, private school

tuition, school trips and extracurricular expenses, clothing, allowance for food, and haircuts.

- 18 -

litigation” caused by Husband. Ultimately, the trial court ordered Husband to pay Wife

alimony in solido of $25,000 for her attorney fees, at the rate of $1,000 per month.

Although Husband was still proceeding pro se, the court’s “Conclusions of Law and

Findings of Fact” directed “[c]ounsel for the parties” to prepare for the court’s approval a

final decree of divorce and permanent parenting plan consistent therewith.9

Three more months passed without the entry of a divorce decree, and Husband filed

a complaint against the trial judge with the State of Tennessee Board of Judicial Conduct

on June 2, 2022. He alleged that the trial judge had failed to comply with Tennessee Code

Annotated section 20-9-506, as the parties had submitted proposed final orders in April

2022 and the trial court still had not entered a final decree. On June 17, 2022, almost one

year after the divorce trial began on June 29, 2021, the trial court entered its final decree

of divorce and permanent parenting plan, which was consistent with the trial court’s

previous findings and conclusions. The final decree provided that Husband’s child support

and alimony obligations would begin on May 1, 2022, and his obligation to pay the

expenses he was paying under previous orders of the court would cease at that time. It

stated that all remaining pleadings and motions were dismissed without prejudice to

refiling as a new cause of action.

On July 6, 2022, Husband, having retained counsel, filed a motion to recuse the trial

judge. He asserted that the trial judge’s delay had caused such injustice to the parties that

there was no way for him to move for post-judgment relief without harshly criticizing the

trial judge. He claimed that since the trial ended one year earlier, the parties had suffered

financially and accumulated unnecessary legal debt, and the final decree was “woefully

outdated and not reflective of the parties’ current reality.” Husband also noted that he had

reported the trial judge to the Board of Judicial Conduct just days before the trial judge

finally entered a final decree. Thus, he contended that a reasonable person would question

the trial judge’s impartiality and ability to be fair to Husband under the circumstances.

One week later, Husband filed a motion to alter or amend the divorce decree,

asserting that the final decree contained manifest errors and that new evidence needed to

be considered. Relevant to this appeal, Husband argued that the trial court erred by

prohibiting him from testifying regarding Wife’s fault for the dissolution of the marriage.

Next, Husband asserted that the trial court’s calculation of his earning capacity resulted in

an “oppressive and impossible spousal support obligation.” He asked the trial court to

adjust his “astronomical” obligations “to comport with the present reality of his financial

situation,” as he was ordered to pay $3,300 in alimony in futuro, $1,000 in transitional

alimony, $1,000 in alimony in solido, $1,696 in child support, and $1,600 for private school

9

Three weeks later, on March 21, 2022, Husband filed a motion to quash a subpoena duces tecum,

stating that since the July 1, 2021 trial date, “there have been a number of matters that have arisen between

the parties that make it necessary to conduct post-trial discovery.” Wife filed a response, acknowledging

that she had attempted to obtain bank records. She noted that her petition for civil contempt and Husband’s

petition to modify the pendente lite support order was still pending.

- 19 -

tuition, for a total of $8,596 per month paid to or for Wife and their son. He asserted that

the trial court’s own five-year income chart showed that his net income had historically

been in the range of $80,000 to $100,000, so this combination of alimony and child support

obligations would result in him “being in violation of the trial court’s orders from their

inception.” He claimed it was unreasonable to require him to pay transitional alimony to

Wife to maintain the marital residence when he wanted to sell it and was struggling to pay

his own rent. He contended that neither party would be able to maintain the marital

standard of living after the divorce. He also asked the court to reconsider its finding of

voluntary underemployment. Finally, Husband contended that the balance in his law firm

operating account, which was $45,000 at the time of trial, was “gone” by the time of the

divorce decree a year later, as Husband was forced to use it to pay pendente lite support,

marital debt, educational expenses, etc. Because the final decree awarded Wife $10,000

from the account, Husband suggested there needed to be “a more current accounting” and

“reapportionment of what little funds remain.” He also filed a separate motion for new

trial, asking the court to reevaluate the parties’ incomes in light of the entire year that had

passed since the divorce trial, as this would have a substantial impact on the proper

calculation of the support obligations and be more indicative of their earning capacities.

He also claimed that the divorce decree awarded assets that no longer existed, as he was

forced to sell a boat to pay the marital debt. Husband submitted his own affidavit in

support, along with numerous other documents, including paperwork related to Wife’s

employment with State Farm.10

On August 3, 2022, the trial court entered an order denying Husband’s motion to

recuse, stating that a disciplinary complaint filed against a judge does not necessarily

require recusal and that the filing of the complaint did not affect her ability to be fair and

impartial in this case. The judge noted that she had already entered her Conclusions of

Law and Findings of Fact prior to the complaint being made, and she stated that she would

continue to give the same careful consideration to the post-trial matters. Husband sought

an accelerated interlocutory appeal of the recusal order pursuant to Rule 10B, but this Court

dismissed the appeal on the basis that it was fatally deficient, as he did not submit the

necessary documents for review.

Wife then filed a combined response to the motion to alter or amend and motion for

new trial. She argued that Husband had not shown any basis for post-judgment relief and

that he was simply “re-making” his arguments from trial. She also claimed that his

arguments regarding the parties’ incomes in the year after trial were “new facts and issues

previously unlitigated” that did not support relief under Rule 59. On November 15, 2022,

the trial court entered an order resolving Husband’s post-judgment motions. It found no

10

He claimed that Wife had perjured herself at trial because she testified that she was earning a

base salary of $24,000 plus commission, when the relevant documents showed that she was earning a base

salary of $28,000 plus commission, with a “Guarantee” of $35,000 (and “Estimated” total compensation of

$45,000 to $60,000).

- 20 -

basis for granting relief because there was not previously unavailable evidence that had

become available, a need to correct a clear error of law, or a need to prevent injustice. On

December 13, 2022, Husband timely filed a notice of appeal to this Court.

On June 16, 2023, Husband filed a Rule 60.02 motion in the trial court. He asserted

that since the final decree was entered, he had obtained relevant information through

subpoenas that justified vacating the judgment, as Wife purposefully misled the trial court

about her earning capacity at trial. According to Husband, documents obtained via

subpoena showed that Wife started working as a teacher for the Memphis-Shelby County

School System on August 1, 2022, at a salary of $56,473.89, with an ability to earn

$73,273.20 if she worked a twelve month schedule, and a salary of $79,273 if she worked

at an “iZone” school. (For comparison of dates, we note that the divorce decree was entered

on June 17, 2022, Husband filed his motion to alter or amend on July 15, 2022, and the

final order was entered on November 15, 2022.) Thus, Husband claimed that Wife’s

earning capacity was substantially higher than the amount the trial court imputed to her at

$33,378. He also claimed that he obtained various credit applications submitted by Wife

claiming a much higher income. Husband again noted Wife’s statement at trial that she

was earning a base salary of $24,000 plus commission when in fact she was guaranteed

$35,000 and expected to earn $45,000 to $60,000. Finally, he noted her testimony that she

intended to continue working as an insurance agent.11

Husband then filed a motion for this Court to remand to the trial court for resolution

of the outstanding Rule 60 motion. On October 10, 2023, this Court granted the motion

and remanded to the trial court. On January 12, 2024, the trial court entered an order

denying the Rule 60 motion. The court characterized Husband’s motion as one alleging

intrinsic fraud by Wife. The trial court noted that she specifically testified at trial that she

could have made more money working at a public school, and she testified of her intention

to continue selling insurance “as of right now.” The court declined to find that she

purposefully misled the court simply because she started working for the public school

system in August 2022, “over a year after the trial concluded, even though it was before

this Court’s ruling.” As for the alleged misstatement of her base salary at State Farm, the

trial court was not convinced that Wife attempted to mislead the court, but even if she did,

it found the nominal difference would not affect the ultimate outcome.

II. ISSUES PRESENTED

Husband presents the following issues for review on appeal:

11

On August 23, 2023, Husband filed a motion to consider post-judgment facts in this Court. The

motion itself consisted of two sentences asking this Court to consider the documents obtained from

Memphis-Shelby County Schools and the credit applications. This Court denied the motion to consider

post-judgment facts on September 7, 2023, noting that it failed to comply with Tennessee Rule of Appellate

Procedure 22 in that it did not contain a memorandum of law, affidavit, or indication of efforts to consult

with adverse counsel.

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1. Did the trial court err in prohibiting Husband’s testimony regarding

Wife’s fault for the divorce?

2. Did the trial court err in the alimony awards made to Wife in the Final

Decree of Divorce? In particular, did the trial court make a just and fair

consideration of all the factors within T.C.A. §36-5-121(i) after the trial court

prohibited Husband’s testimony relevant to the relative fault of the parties?

3. Did the trial court err in its calculation of Wife’s imputed income?

4. Did the trial court err in finding Husband is voluntarily

underemployed for purposes of imputing income to him?

5. Did the trial court err in its calculation of Husband’s gross income for

support purposes by including two large fees in its calculation that Husband

earned after Wife’s filing for divorce, fees that are not representative of what

Husband historically earned throughout the course of the marriage?

6. Did the trial court err in refusing to allow Husband to take deductions

from his gross income for legitimate business expenses designated as “costs

of goods sold” on his Federal Income Tax returns?

7. Did the trial court err in awarding both transitional alimony and

alimony in futuro to Wife?

8. Did the trial court err in awarding Wife attorney fees as alimony in

solido?

9. Did the trial court err in making a division of marital property

determination relative to a bank account, when that determination was not

made on a date as near as possible to the final divorce hearing date?

In her posture as appellee, Wife presents the following additional issue:

1. Whether this Court should award to Wife her attorney fees incurred

in defending this appeal, either as a frivolous appeal or pursuant to Tenn.

Code Ann. § 36-5-103(c).

For the following reasons, we vacate in part and affirm the decision of the circuit court as

modified.

III. DISCUSSION

At the outset, we note that the parties’ sons have now reached the age of majority.

As such, no issues are presented on appeal regarding parenting time or child support. The

issues presented pertain to marital fault, valuation of marital property, alimony, and

attorney fees.

A. Marital Fault

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We begin with Husband’s issue regarding marital fault. The issue he presents is

whether the trial court erred “in prohibiting Husband’s testimony regarding Wife’s fault

for the divorce.” Husband argues that “it was improper for the trial court to deny Husband

the opportunity to present evidence and testimony relevant to Wife’s fault” because it was

relevant to the ground of inappropriate marital conduct and a factor to consider in the

alimony analysis. Rather than citing to the record where this alleged error occurred,

Husband’s brief stated, “Attached hereto as Appendix A. is the trial segment wherein the

court prohibited Husband’s testimony on many facts relevant to a proper determination of

the parties’ fault.”

The attached “Appendix A” spans three pages. It begins with the portion of

Husband’s testimony when his counsel asked how he became aware of Wife’s affair, and

Wife’s counsel objected on the basis of relevancy, noting that Wife had already admitted

to the existence of the relationship. She noted that Wife alleged inappropriate marital

conduct by Husband as well. Counsel stated that “if there’s a question about dissipation .

. . I understand the relevancy of that,” but she added, “I just don’t know why we’re going

down this road.” In response, Husband’s counsel argued that Husband was “entitled to

testify as to how his relationship with his wife unraveled,” noting that Wife alleged

inappropriate marital conduct by him as well. The trial judge stated, “I don’t think it’s

relevant to go – because she’s already admitted to it, so unless it goes to some other basis,

some other grounds that he’s alleged, I think we need to move on from it.” (emphasis

added). Husband’s counsel simply responded, “Thank you, Your Honor.” Immediately

thereafter, Husband’s counsel began to question him about whether he was willing to work

on the marriage or had “hope” for the marriage even after he discovered the affair. Wife’s

counsel again objected on the basis of relevancy, noting that both parties currently wanted

a divorce. The trial judge asked Husband’s counsel to clarify “to what issue” was this line

of questioning relevant. Counsel said, “It’s relevant to fault, Your Honor.” The trial judge

again stated that “she’s already admitted to the relationship, so I’m not sure why we need

to go down the road.” Husband’s counsel proceeded to explain that “this line of

questioning really has a bearing on [Wife’s] priorities,” to the extent that “she placed other

priorities over her priorities for her family and her husband and her children possibly.” The

trial judge stated that she was “still struggling with the relevance because if she’s already

admitted fault, his testimony of him still wanting to work on the marriage, I’m not sure

how that has a bearing on fault one way or the other.” She mentioned Husband’s admission

that he was also in a relationship at the time of trial and said, “I’m still not sure how this

has any significant bearing on fault.” The judge stated that “unless the priority has

something to do with the children,” she did not “want us to spend time on something that

is unnecessary.” Husband’s counsel responded, “I understand. Your Honor, I’ll just move

on. That’s fine. I’ll move on.”

This Court considered a similar situation in Barlew v. Barlew, No. E2004-01654-

COA-R3-CV, 2005 WL 954797, at *4 (Tenn. Ct. App. Apr. 26, 2005), where a husband

argued on appeal that “the trial court erred in refusing to hear evidence of Wife’s fault in

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the divorce.” In that case, the husband’s attorney attempted to ask the husband questions

about why he filed for divorce, and the trial judge stated that he did not “really have to hear

any grounds[.]” Id. Counsel argued that fault was relevant because “there is an alimony

claim out there,” but the trial judge stated that he did not intend to punish either party with

regard to fault. Id. at *5. Counsel for the husband ended the exchange by stating, “Okay.

I’m not going to belabor it. I would just like for him, for the record, just state why he filed

for divorce since he is the plaintiff in this case. We’re not going to belabor it. We’re not

going to go into it.” Id. On appeal, this Court found no reversible error by the trial court.

Id. We stated that the information the husband’s counsel sought to elicit was already in

the record in the form of his complaint alleging adultery and the wife’s answer admitting

to adultery. Id. Moreover, counsel’s statement that “we’re not going to belabor it” could

“have been reasonably construed by the trial court as a disinclination to press the issue

further or to object to its decision regarding relative fault.” Id. Finally, we noted that the

husband “did not request to make an offer of proof regarding his allegations of fault.” Id.

We reach the same conclusion here. Husband’s counsel ended the exchange by

stating, “I understand. Your Honor, I’ll just move on. That’s fine. I’ll move on.” He also

failed to make an offer of proof. When excluded evidence consists of oral testimony, “it

is essential that a proper offer of proof be made in order that the appellate court can

determine whether or not exclusion was reversible.” State v. Goad, 707 S.W.2d 846, 853

(Tenn. 1986). A trial court’s erroneous exclusion of evidence only requires reversal if that

evidence would have affected the outcome of the trial if it had been admitted, and a

reviewing court cannot make such a determination “without knowing what the excluded

evidence would have been.” Jernigan v. Paasche, 637 S.W.3d 746, 758 (Tenn. Ct. App.

2021) (quoting Hampton v. Braddy, 270 S.W.3d 61, 65 (Tenn. Ct. App. 2007)).

“Accordingly, the party challenging the exclusion of evidence must make an offer of proof

to enable the reviewing court to determine whether the trial court’s exclusion of proffered

evidence was reversible error.” Id. (quoting Hampton, 270 S.W.3d at 65). The offer of

proof must contain “the substance of the evidence and the specific evidentiary basis

supporting the admission of the evidence,” and this may be satisfied by presenting the

actual testimony, stipulating to the content of the excluded evidence, or presenting a

summary of the excluded evidence. Id. (quoting Hampton, 270 S.W.3d at 65). An

appellate court “‘will not reverse a trial court’s ruling excluding evidence if the appellant

fails to make an offer of proof regarding the substance of the evidence and the supporting

evidentiary basis to support its admission.’” Mitchell v. City of Franklin, No. M2021-

00877-COA-R3-CV, 2022 WL 4841912, at *14 (Tenn. Ct. App. Oct. 4, 2022) (quoting

Rose v. Cookeville Reg’l Med. Ctr. Auth., No. 2010-01438-COA-R3-CV, 2011 WL

251210, at *2 (Tenn. Ct. App. Jan. 13, 2011)). A party’s failure to make an offer of proof

“constitutes a waiver of the right to challenge the exclusion of [the] testimony.’” Jernigan,

637 S.W.3d at 758 (quoting Hampton, 270 S.W.3d at 65). Thus, determining whether a

party waived an issue by failing to make a timely offer of proof is a “threshold issue.”

Mitchell, 2022 WL 4841912, at *14.

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In her brief on appeal, Wife argued, “Husband did not make an offer of proof at trial

regarding what other facts he would have testified to, if permitted. Rather, his counsel

apparently acquiesced to the Court’s ruling on this issue[.]” In Husband’s reply brief, he

acknowledged that his trial counsel “did fail to make an offer of proof at trial regarding

what facts he would have testified to, if permitted,” but he argued that an exception to the

requirement of an offer of proof should apply because the substance of his testimony was

apparent. Tennessee Rule of Evidence 103 provides:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is

affected, and

...

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance

of the evidence and the specific evidentiary basis supporting admission were

made known to the court by offer or were apparent from the context.

Tenn. R. Evid. 103 (underlining added). However, we disagree with Husband’s suggestion

that the substance of the excluded evidence was “apparent from the context” here. Our

point is illustrated by the argument Husband made in his principal brief on appeal. He

argued that “[b]ecause of the trial court’s ruling as shown in Appendix A, Husband was

not permitted to testify on the particularly painful and distressing way that he discovered

Wife’s adultery and inappropriate marital conduct,” or “how Wife’s misconduct

emotionally impacted the children,” or “how her subsequent, numerous, repeated acts of

inappropriate marital conduct affected him throughout the later part of 2018, all of 2019

and 2020, up until the trial in June of 2021, a period of years when Wife frequently left

Husband alone to care for the children while she traveled and spent marital funds to have

sex with her paramour.” He also complained that the trial court “heard nothing about the

adulterous relations, the cruel acts, and inappropriate marital behavior of Wife which

coincided with her multiple, ongoing sexual encounters with [her paramour] that resulted

in her frequent absence from the marital residence throughout the later part of 2018, all of

2019, all of 2020, and the first half of 2021 up until trial.” He claimed he was also

“prohibited from telling the trial court how he made efforts to save the marriage despite

Wife’s inappropriate marital conduct, and how Wife callously rebuffed those efforts.” He

argued that “[a]ll of that testimony” was relevant and necessary for the trial court to hear

to properly determine marital fault. He also claimed the court “improperly prohibited

Husband from offering any proof on Wife’s absences” and trips even though it related to

dissipation of the marital assets. He claimed that he “was not permitted to testify on the

number of trips he recalled Wife [] taking or how any of these trips taken by Wife affected

him or the children, such as the occasions when Wife would spend the night with [her

paramour] in a hotel less than a half mile away from the couple’s residence, or when Wife

would be absent during significant, milestone events involving the children.”

It certainly was not apparent from the context of counsel’s questions about how

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Husband discovered the affair and whether he had hope for the marriage thereafter that

Husband would have testified as to all of these issues. See, e.g., City of LaVergne v. Gure,

No. M2020-00148-COA-R3-CV, 2022 WL 3709387, at *4 (Tenn. Ct. App. Aug. 29, 2022)

(“Mr. Gure made no offer of proof. Although the context indicates the evidence relates to

the speed of Mr. Gure’s car at some point in time, the substance of the evidence is unclear.

The parties’ briefs reflect as much. . . . So we cannot determine whether the trial court’s

error entitles Mr. Gure to relief.”); Belton v. City of Memphis, No. W2019-00526-COA-

R3-CV, 2020 WL 5816196, at *3 (Tenn. Ct. App. Sept. 30, 2020) (“The court indicated

that it was excluding evidence of ‘three contract conversations.’ The substance of those

conversations is not apparent from the record. While we can glean some clues from the

City’s motion, these clues cannot substitute for an offer of proof.”); Metro. Dev. & Hous.

Agency v. Nashville Downtown Platinum, LLC, No. M2017-00450-COA-R3-CV, 2017

WL 6210855, at *4 (Tenn. Ct. App. Dec. 8, 2017) (“Although the cited portion of the

transcript perhaps suggests that Platinum desired to elicit certain post-taking information

concerning the 2010 year, the exact nature of what it wanted to explore is not clear here in

the absence of an offer of proof. Accordingly, it is unclear whether any of the desired

evidence would be competent and appropriately admissible under our rules of evidence

and whether it would have affected the trial outcome.”). Because Husband’s counsel failed

to make an offer of proof, this Court is unable to ascertain what proof would have been

introduced, and therefore he has waived review of the trial court’s ruling on this issue. See

Est. of Bane v. Bane, No. E2020-00978-COA-R3-CV, 2022 WL 853925, at *8-9 (Tenn.

Ct. App. Mar. 23, 2022) (“Plaintiff made no offer of proof as to the excluded testimony.

Accordingly, we are unable to review the excluded evidence and thus cannot determine

whether its exclusion would have affected the outcome of the trial had it been admitted.”)

(quotation omitted).12

B. Valuation of Marital Asset

Next, we will consider the issue presented by Husband regarding the valuation of a

marital asset. See Mabie v. Mabie, No. W2015-01699-COA-R3-CV, 2017 WL 77105, at

*6 (Tenn. Ct. App. Jan. 9, 2017) (“Pursuant to Tennessee law, the sequence of events in a

divorce ruling is that a trial court should first make its determinations as to the disposition

of the parties’ marital property before awarding alimony because one of the factors to be

considered in awarding alimony is the provisions made with regard to the marital

12

In his reply brief, Husband quoted Hill v. Hill, No. M2006-01792-COA-R3-CV, 2008 WL

110101, at *5 (Tenn. Ct. App. Jan. 9, 2008), in which this Court listed two exceptions to the rule requiring

an offer of proof. Husband summarily stated that “[b]oth of the exceptions defined by Hill are present in

this case.” However, he did not cite any additional legal authority or to the record on appeal in an attempt

to develop any argument regarding the second exception. Therefore, we deem his skeletal argument

regarding the second exception waived. See Sneed v. Bd. of Prof’l Resp. of Sup. Ct., 301 S.W.3d 603, 615

(Tenn. 2010) (“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case or

arguments for him or her, and where a party fails to develop an argument in support of his or her contention

or merely constructs a skeletal argument, the issue is waived.”).

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property.”). Initially, we emphasize the narrow issue Husband presents on appeal: “Did

the trial court err in making a division of marital property determination relative to a bank

account, when that determination was not made on a date as near as possible to the final

divorce hearing date.” According to Husband’s brief, he “specifically objects to the trial

court’s division of a bank account.” The bank account at issue was the operating account

for Husband’s law firm, which he was using for all of his expenses, business and personal.

In his pretrial memorandum, Husband listed this account as having a balance of $88,021

as of May 31, 2021. However, during his testimony at trial on June 30, 2021, Husband

testified that the current balance of the account was only $45,000. He proposed that Wife

retain her retirement account and that he retain his operating account, noting that he needed

those funds to pay expenses for the Blount Law Firm such as payroll. When the trial court

entered its divorce decree one year later, it valued Husband’s account at $45,000 but

ordered him to pay Wife $10,000 from the funds in the account.

On appeal, Husband cites Tennessee Code Annotated section 36-4-121(b)(2)(A),13

which provides, “All marital property shall be valued as of a date as near as possible to the

date of entry of the order finally dividing the marital property.” Tenn. Code Ann. § 36-4-

121(b)(2)(A). He notes that the divorce decree was entered in this case almost one full

year after trial. Given this delay, he claims “it should be no surprise that the amount of

funds in the account on July 1, 2021 was not the same as the amount that existed on June

17, 2022.” Husband asks this Court to “reverse the Trial Court’s ruling regarding the bank

account at issue and a limited remand should be granted so that the trial court can receive

evidence concerning the value of the bank account as of a date as near as possible to the

date of the trial court’s future ruling.” Alternatively, he asks this Court to eliminate the

payment to Wife from the account.

Aside from the statute itself, the only authority Husband cites in support of this issue

is Hill v. Hill, 682 S.W.3d 184 (Tenn. Ct. App. 2023). In that case, a divorce decree

assigned a value to a wife’s retirement accounts “at the time of separation.” Id. at 202. On

appeal, the husband argued that the trial court erred by valuing the accounts at “the date of

separation rather than the date of divorce.” Id. at 195. We agreed with the husband that

pursuant to Tennessee Code Annotated section 36-4-121(b)(2)(A), “‘marital property shall

be valued as of a date as near as possible to the date of entry of the order finally dividing

the marital property.’” Id. at 202. We stated that the trial was conducted in January and

June 2018, but the final order was not entered until April 22, 2020, so the account should

have been valued “as of a date as near as possible to” April 22, 2020. Id. However, we

explained,

The obvious difficulty with adhering to the statute’s requirement in this

matter is that the final order was not entered until approximately twenty-two

months following the trial. In addition, the proof that was introduced

13

When the divorce complaint was filed, this language was found in subsection (b)(1)(A).

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concerning the value of Wife’s employment-related retirement accounts was

from July 2017, a date preceding the final order’s entry by almost three years.

Id. Under those circumstances, we determined that the husband’s issue regarding the

proper valuation of the accounts had merit. Id. We vacated the trial court’s valuation and

explained that “a limited remand is necessary so that the trial court can receive evidence

concerning the value of the parties’ retirement accounts as of a date as near as possible to

April 22, 2020,” and value the accounts accordingly. Id. Thus, in Hill, the problem with

the valuation was not solely due to delay by the trial court but also because the trial court

valued the account “at the time of separation.” Id. That did not occur here.

This Court recently considered another appeal involving the timing of a trial court’s

marital property valuation in Barnes v. Barnes, No. M2022-00328-COA-R3-CV, 2023 WL

6846504 (Tenn. Ct. App. Oct. 17, 2023) perm. app. denied (Tenn. Mar. 6, 2024). In that

case, a five-day divorce trial was split between three days in October 2020 and two days in

June 2021. Id. at *9. The husband introduced his asset and liability statement on the first

day of trial in October 2020. Id. On the fourth day of trial in June 2021, he requested “to

update the marital property values, because it had been nearly eight months since the values

were introduced.” Id. The trial court refused this request. Id. As a result, by the time the

final decree was entered in November 2021, “the values were just over a year old.” Id.

The husband then filed a motion to alter or amend, again requesting that the court update

the values. Id. The trial court again refused, stating that updating the values would require

reopening the proof, which the court deemed inappropriate. Id.

On appeal, Mr. Barnes argued that the trial court erred by “not updating the value

of the marital estate in response to his requests.” Id. at *8. He claimed that the trial court’s

actions violated Tennessee Code Annotated section 36-4-121(b)(2)(A). Id. at *9. To

begin, we explained that decisions regarding the value of marital property are questions of

fact, and the parties bear the burden of presenting competent evidence of value. Id. at *8.

However, we also recognized that section 36-4-121(b)(2)(A) cabins the discretion of the

trial court with regard to the timing of valuation. Id. at *9. In the Barnes case, the trial

court had twice declined the husband’s requests to update his proof of valuation, once

during the trial and once in response to his motion to alter or amend. Id. at *10. However,

in declining to permit “further testimony upon ground already traversed by the parties,” the

trial court had noted that the parties indicated that the trial would take three days, and the

court had calendared the case accordingly. Id. Thus, the trial court explained that “it was

the parties, not the court, that were at fault for the delay that arose in completing the trial,

which instead took five days.” Id. The court also referenced the scheduling challenges it

faced in dealing with a backlog of cases after Covid-19. Id. “Furthermore, the trial court

observed the impossibility of and confusion caused by continually updating valuation

during the course of trial proceedings.” Id. The trial court “viewed allowing further proof

as creating unnecessary complexities.” Id. It explained that “allowing updating would not

be as simple as permitting Mr. Barnes to present evidence of changed valuation but would

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instead necessitate an opportunity for Ms. Barnes to be able to cross-examine and also to

be able to call witnesses.” Id. Mr. Barnes acknowledged the trial court’s stated concerns

on appeal but argued that “the trial court’s rationale provides an improper basis to deny

permission to update valuation.” Id. He claimed that he was “merely endeavoring to

update the valuation” of assets with a readily ascertainable value like checking accounts

and retirement accounts, so the trial court’s concern regarding “the time that would be

necessary to update the values was misplaced.” Id. From our review of the record,

however, we concluded that the husband did not clearly communicate to the trial court that

he sought a limited in scope, “less time-consuming, less complex, and less challenging

update,” as opposed to a broad-based update of the numerous complex assets involved. Id.

Nevertheless, we conceded that Mr. Barnes “raises a valid concern, contending there

are limits on how far a trial court’s control of its docket can go in limiting the ability of a

party to present evidence related to valuation of marital property.” Id. Given the directive

of Tennessee Code Annotated section 36-4-121(b)(2)(A), we agreed that “there are limits

on a trial court’s ability to use docket control to justify limitations on valuation testimony

in accordance with the demands of the statute.” Id. However, the docket management

concerns of the trial court remain applicable when considering what valuation date is

reasonably “possible” under the statute. Id. Applying these principles to the facts before

us, we noted that Barnes was not a case where the trial court failed to afford the parties the

time they believed necessary to try their case and significant delay resulted. Id. “To the

contrary,” we explained, the trial court honored the attorneys’ three-day trial projection,

and “the delay between valuation evidence being presented and the final divorce hearing

was the parties,’ not the court’s, fault.” Id. We also noted the delay in scheduling the final

days of trial was partly attributable to the backlog from Covid-19. Id. Finally, we

recognized that the case involved a significant number of assets, some quite complex with

respect to valuation, and the attempt to “update” the values was not as limited in scope as

the husband suggested on appeal. Id. We observed, “In a case with dozens of assets, this

helps to explain the trial court’s concern that updating would create confusion and why

allowing updating of valuation testimony could impinge further and unreasonably upon the

trial court’s docket.” Id. Overall, “given the confluence of these circumstances,” we could

not say that the trial court’s ruling, declining to allow testimony updating the values, was

not in accordance with what was reasonably “possible” under the circumstances. Id.

Like the Barnes case, in the present case, the trial court’s valuation of Husband’s

bank account was based on information that was roughly a year old by the time the divorce

decree was entered. Unlike the Barnes case, however, the delay here was not attributable

to the conduct of the parties. The record contains no indication as to why the trial court

took one year after trial to enter its divorce decree. This Court has repeatedly recognized

that “[t]he issue of delay in entering final judgment . . . is a recurring problem.” Justice v.

Sovran Bank, 918 S.W.2d 428, 429 (Tenn. Ct. App. 1995). In such cases, we have

recognized:

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An inordinate delay in resolving issues in dispute results in prejudice to the

judicial process. See T.R.A.P. Rule 36(b). The record before us does not

establish any basis for the long delay in the final resolution of the case, but

all public officials are afforded the presumption that they have discharged

their public responsibilities in a proper manner. Delays can be and are caused

by misplaced court records, cases being inadvertently removed from the

docket and other extenuating circumstances.

The attorneys for the parties are required to take all reasonable steps

to obtain a timely resolution of the issues in their cases. T.R.A.P. Rule 36

provides in pertinent part:

Nothing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take

whatever action was reasonably available to prevent or nullify

the harmful effect of an error. (Emphasis supplied).

Attorneys are understandably reluctant to ask a busy trial judge to decide the

issues in their case. However, after a reasonable elapse of time, attorneys

should file a joint motion with the trial court asking for a judicial

determination of their case. Zealous representation requires attorneys to take

all reasonable steps to bring about a timely resolution of the clients’ disputes.

See Rule 8, Code of Professional Responsibility, canon 7. In this case, neither

counsel sought relief and must bear some responsibility for the long delay.

Hill, 682 S.W.3d at 209 (quoting Justice, 918 S.W.2d at 429-30); see also Byrd v. Byrd,

No. W2021-00926-COA-R3-CV, 2022 WL 16548578, at *20 (Tenn. Ct. App. Oct. 31,

2022).

Examining the actions taken by Husband and his counsel in this case, however, we

discern another significant difference from the Barnes case. Barnes involved a party’s

request to update the proof of valuation beginning on the fourth day of trial. 2023 WL

6846504, at *9. Here, Husband did not seek to update his valuation proof at any point prior

to the divorce decree. During the year-long delay between the divorce trial and entry of

the decree, Husband filed his proposed findings of fact and conclusions of law, a petition

to modify the order on temporary support, a motion to set a status conference to know when

to expect a ruling, and a motion to render a decision. However, he did not seek to reopen

the proof or update the valuation of his operating account or any other asset. See, e.g.,

Acosta v. Acosta, 499 S.W.3d 785, 789 (Tenn. Ct. App. 2016) (finding no abuse of

discretion in a trial court’s decision to reopen the proof after trial to consider additional

evidence relevant to alimony). Even when the trial court issued its Conclusions of Law

and Findings of Fact in March 2022, valuing the account at $45,000 and awarding Wife

$10,000 from the account, Husband did not raise the issue prior to entry of the final decree

in June 2022. After the trial court entered its divorce decree, he filed a motion to alter or

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amend, claiming, for the first time, that the funds in the account were “gone.”14 The trial

court denied the motion to alter or amend, and Husband did not challenge that ruling on

appeal.15

Ultimately, “[t]he burden is on the parties to provide competent evidence of

value[.]” Greene v. Greene, No. M2022-01171-COA-R3-CV, 2023 WL 6619209, at *3

(Tenn. Ct. App. Oct. 11, 2023) (citing Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct.

App. 2007)). As the record stood at the time of the divorce decree, the most current

evidence before the trial court as to the balance of Husband’s account was his own trial

testimony, and the trial court utilized that figure. Considering all the circumstances, we

decline Husband’s request for relief on appeal in relation to the account balance. See

Wilson v. Wilson, No. M2002-02286-COA-R3-CV, 2003 WL 22238953, at *3 (Tenn. Ct.

App. Sept. 30, 2003) (concluding that a husband’s arguments about a valuation date being

as near as possible to the final order was “not without merit but his actions preclude[d] its

assertion” where he failed to produce any financial information beyond that date, so he was

“precluded from asserting a premature valuation when such valuation [was] a product of

his own doing”).

14

In Julie C. W. v. Frank Mitchell W., No. M2019-01243-COA-R3-CV, 2021 WL 745288, at *1

(Tenn. Ct. App. Feb. 26, 2021) perm. app. granted, remanded on other grounds (Tenn. Aug. 11, 2021), a

divorce trial occurred over the course of eleven days spread out over several months from January through

July 2018. Months passed before the entry of the final decree, and it was entered in March 2019. Id. at

*12. On appeal, the wife argued that the trial court erred in finding that it could not hear any updated

evidence regarding the value of assets after entry of the final decree because the parties stipulated to values

at the inception of trial. Id. at *20. She claimed that by the time of the final decree, the stipulated values

were “stale.” Id. However, the husband suggested that she had “waited” for the trial court to issue its

divorce decree to determine if the ruling was to her liking. Id. We stated that “a party may not stipulate to

certain facts, await a result, incur an adverse result, and then seek to modify the stipulation.” Id. at *20.

15

We note that Husband included one sentence in the introductory summary of his argument section

stating that “[t]he trial court should have either granted Husband’s timely filed Motion to Alter and Amend

or his Motion for New Trial.” He also characterized his appeal as an “appeal of the trial court’s order

denying his two post trial motions.” However, neither motion was ever mentioned again in the argument

section of his brief. The issues framed by Husband on appeal did not reference the motions, nor did he

develop any argument on appeal regarding the denial of these motions. See Turner v. WW Steeplechase,

LLC, No. E2020-00579-COA-R3-CV, 2021 WL 3127106, at *5 (Tenn. Ct. App. July 23, 2021)

(“Significantly, Plaintiffs have not appealed the denial of their . . . Motion to Alter or Amend.”); Ingram v.

Ingram, No. W2017-00640-COA-R3-CV, 2018 WL 2749633, at *11 n.3 (Tenn. Ct. App. June 7, 2018)

(“Husband did not designate the adjudication of his motion to alter or amend as a separate issue in his

brief.”); Burris v. Burris, 512 S.W.3d 239, 255 n.11 (Tenn. Ct. App. 2016) (“Mother’s choice to confine

her appeal only to the question of whether the trial court denied her motion to alter or amend is somewhat

puzzling. . . . Because Mother filed a timely Rule 59.04 motion and filed her notice of appeal within thirty

days of the trial court’s denial of that motion, she was entitled to appeal both the underlying judgment and

the denial of her post-trial motion. Mother chose, however, to limit the issue on appeal only to the denial

of her motion to alter or amend.”); Kantz v. Bell, No. M2013-00582-COA-R3-CV, 2014 WL 4058823, at

*3 n.5 (Tenn. Ct. App. Aug. 15, 2014) (“The Rule 59.04 Motion to Alter or Amend was denied by the trial

court; the Trust does not appeal that ruling.”).

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C. Alimony

The remaining seven issues presented by Husband all relate to alimony. We will

address each one in turn. However, we recognize that the trial court was considering issues

of child support and alimony simultaneously when making its decisions below. As

previously noted, the issue of child support is no longer relevant because the children have

reached the age of majority, and the parties present no issues on appeal regarding child

support. The matter is somewhat complicated, however, because the section of the divorce

decree addressing alimony only spans about three pages of the thirty-page decree but

summarily “reincorporates [the trial court’s] previous findings contained herein” in other

sections of the decree.

In reviewing a trial court’s award of alimony, appellate courts must bear in mind

that “trial courts in Tennessee have broad discretion to determine whether spousal support

is needed and, if so, to determine the nature, amount, and duration of the award.” Mayfield

v. Mayfield, 395 S.W.3d 108, 114 (Tenn. 2012). Because decisions regarding spousal

support are factually driven and require the balancing of many factors, “the role of an

appellate court is not to second guess the trial court or to substitute its judgment for that of

the trial court, but to determine whether the trial court abused its discretion in awarding, or

refusing to award, spousal support.” Id. (citing Gonsewski v. Gonsewski, 350 S.W.3d 99,

105 (Tenn. 2011)). “‘An abuse of discretion occurs when the trial court causes an injustice

by applying an incorrect legal standard, reaches an illogical result, resolves the case on a

clearly erroneous assessment of the evidence, or relies on reasoning that causes an

injustice.’” Id. (quoting Gonsewski, 350 S.W.3d at 105).

1. Voluntary Underemployment of Husband

The first issue raised by Husband concerning alimony is whether the trial court erred

in finding him “voluntarily underemployed for purposes of imputing income to him.” The

trial court’s discussion of the parties’ earning capacities and the issue of voluntary

underemployment is found in the section of its order addressing the division of the marital

estate, and the trial court then carried over its income calculations to the sections on child

support and alimony. The court cited no applicable legal standards or factors, in either

section, regarding a determination of voluntary underemployment. It simply concluded:

Husband voluntarily terminated and thus voluntarily underemployed. [sic]

Husband’s first obligation is to provide support to his child and to Wife and

his own needs must be balanced with the need for support and maintenance

and the Court has the authority to impute income to Husband based on his

earning potential.

A specific section of the Tennessee Child Support Guidelines “governs the situation in

which a parent is deemed voluntarily underemployed.” Al Qaisi v. Alia, No. M2020-

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00390-COA-R3-CV, 2021 WL 345416, at *8 (Tenn. Ct. App. Jan. 28, 2021). It provides

that when a parent has been found to be willfully or voluntarily underemployed,

“‘additional income can be allocated to that parent to increase the parent’s gross income to

an amount which reflects the parent’s income potential or earning capacity, and the

increased amount shall be used for child support calculation purposes.’” Id. (quoting Tenn.

Comp. R. & Regs. 1240-02-04-.04 (3)(a)(2)(ii)(II)) (emphasis in Al Qaisi). However,

Tennessee’s alimony statute simply includes as one factor to consider, when determining

the nature, amount, length of term, and manner of payment: “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.” Tenn. Code Ann. § 36-5-121(i)(1)

(emphasis added). Consequently, “‘[w]hat is necessary to be found before a court can

impute income to [a spouse] when determining [the] need for alimony purposes is not

necessarily the same as what must be found before a court can impute income . . . for

purposes of calculating child support under the Guidelines.” Rogin v. Rogin, No. W2012-

01983-COA-R3-CV, 2013 WL 3486955, at *21 (Tenn. Ct. App. July 10, 2013) (quoting

Pearson v. Pearson, No. E2007-02154-COA-R3-CV, 2008 WL 4735305, at *15 (Tenn.

Ct. App. Oct. 27, 2008)).16

“This Court has previously considered a party’s ‘capacity to earn’ rather than his

actual income for purposes of alimony, even when there was no finding that the party was

willfully and voluntarily underemployed.” Id. (citing Yattoni-Prestwood v. Prestwood, 397

S.W.3d 583, 594 (Tenn. Ct. App. 2012); Storey v. Storey, 835 S.W.2d 593 (Tenn. Ct. App.

1992)). Still, Tennessee courts do often consider whether a spouse is voluntarily

underemployed in the context of determining his or her earning capacity for purposes of

alimony. See, e.g., Chase v. Chase, 670 S.W.3d 280, 293-94 (Tenn. Ct. App. 2022)

(concluding that a spouse’s career choice did not render her voluntarily underemployed for

purposes of alimony); Robinson v. Robinson, No. E2020-01535-COA-R3-CV, 2022 WL

2336504, at *10 (Tenn. Ct. App. June 29, 2022) (“Willful and voluntary underemployment

can impact the amount of child support and alimony to be paid.”); Small v. Small, No.

M2009-00248-COA-R3-CV, 2010 WL 334637, at *4 (Tenn. Ct. App. Jan. 28, 2010)

16

In Pearson, 2008 WL 4735305, at *13-15, for instance, we found no error in a trial court’s finding

that a wife was not willfully unemployed for purposes of child support but imputed income to her for

purposes of alimony based on her earning capacity. Likewise, in Waddell v. Waddell, No. W2020-00220-

COA-R3-CV, 2023 WL 2485667, at *45 (Tenn. Ct. App. Mar. 14, 2023) perm. app. denied (Tenn. Sept.

12, 2023), we rejected a wife’s argument that the trial court erred or “contradicted itself” by imputing no

income to her for child support purposes but finding that she had an earning capacity of $182,000 for

alimony purposes.

We note, however, that courts sometimes adopt the same analysis both for child support and

alimony. See, e.g., Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 3537467, at *12

(Tenn. Ct. App. June 23, 2016) (“We have previously affirmed the trial court’s finding that Father is

willfully and voluntarily underemployed as well as its calculation of Father’s income based upon an average

of his deposits in the marital account in the years prior to the divorce for child support purposes. For the

same reasons, we also affirm the trial court’s calculation of Father’s income at between $100,000.00 and

$110,000.00 for alimony purposes.”).

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(“Willful and voluntary underemployment can impact the amount of alimony to be paid

since the statute governing alimony specifically refers to earning capacity, as opposed to

actual earnings.”) (internal quotations omitted). In the specific context of alimony, we

have explained:

When called upon to determine whether a person is willfully and voluntarily

unemployed or underemployed, the courts must consider the person’s past

and present employment, as well as the reasons for the unemployment or the

taking of a lower paying job. If the decision for unemployment or for taking

a lower paying job is reasonable, the court will not find the person to be

willfully and voluntarily underemployed.

Chase, 670 S.W.3d at 293 (quoting Byrd v. Byrd, 184 S.W.3d 686, 691 (Tenn. Ct. App.

2005)). This reasoning applies equally to the obligor spouse and the obligee spouse. Id.

“‘Whether a party is willfully and voluntarily underemployed [or unemployed] is a fact

question, and the trial court has considerable discretion in its determination.’” Robinson,

2022 WL 2336504, at *10 (quoting Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App.

2001)). Thus, a trial court’s finding of underemployment is afforded a presumption of

correctness unless the preponderance of the evidence is otherwise. Id.

Husband contends that the trial court erred in finding him voluntarily

underemployed and that his decision to return to work exclusively for the Blount Law Firm

was reasonable. Considering his past and present employment and his reasons for taking

a lower paying job, we agree. See Chase, 670 S.W.3d at 293. Husband began working for

the Blount Law Firm, founded by his grandfather, when he was in college, at least five

years before the parties married. He joined the firm when he became licensed to practice

law in 1998. When he married Wife at age 27, he was working for the Blount Law Firm

with his father, and he continued working there throughout the parties’ marriage. Husband

testified that his employment situation only changed in late 2018 when he was “desperately

trying to stay married.” He testified that Wife informed him that the primary reason she

wanted a divorce was because of their financial issues. Wife acknowledged during her

testimony that she had “begged [Husband] for years” to give up the Collierville office

building and get a job at another firm. Thus, Husband explained that when he was offered

the job at this other firm, Wife had just informed him that she wanted a divorce, he “didn’t

have any relief in sight in terms of a purchaser” for the Collierville office, and it all “came

to a head” at the same time, so he decided to try working at the other firm in an effort to

save his marriage. However, Wife filed for divorce anyway, and he finally sold the

Collierville office shortly thereafter. Husband tendered his resignation to the other firm

after two years, ending his employment there about three months before trial. He explained

that his work environment at the other firm was “absolutely miserable” because it was a

very high volume personal injury practice that he was “not accustomed to” after practicing

for twenty years, his entire career, at the Blount Law Firm. As an associate attorney at the

other firm, he was expected to handle between 200 and 300 cases at a time. Husband said

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he simply could not keep up with that demand. He said his emotional state had deteriorated

during the divorce proceeding, so it was difficult for him to focus on his workload and he

feared that he was going to commit legal malpractice. In fact, Husband noted that shortly

before trial, he had paid the other firm $20,000 toward its deductible on its malpractice

insurance because of concerns that he had let the statute of limitations run on one of its

cases. Husband said his fear of something like that happening was a big reason why he

had left the firm. He said he simply could not “responsibly” handle that workload, and he

“wanted to be a good lawyer for a more responsible number of people.” Additionally,

Husband noted that his income had already “fallen off” at the other firm because he had

not been meeting its earnings goals, and therefore, his percentages had been reduced, so he

would not have been earning as much at the other firm going forward as he had earned in

2020. We also note that Husband had continued working on cases for the Blount Law Firm

during his brief period of employment with the other firm and decided to resume working

there full-time.

In Berkshire v. Berkshire, No. E2014-00022-COA-R3-CV, 2014 WL 6735385, at

*7 (Tenn. Ct. App. Dec. 1, 2014), this Court concluded that the evidence supported a trial

court’s finding that a husband was not voluntarily underemployed where he “provided at

least three objectively reasonable reasons why he quit his job.” The three reasons were as

follows: “(1) they cut his hours and earnings significantly, breaching his employment

agreement; (2) he had to commute 140 miles round-trip from Roane County to Cookeville

and back each workday; and (3) the Cookeville job required him to work on unfamiliar

Hyundai cars—vehicles on which he did not enjoy working.” Id. We likewise conclude

that Husband provided objectively reasonable reasons for returning to work full-time for

the Blount Law Firm. “If the decision for unemployment or for taking a lower paying job

is reasonable, the court will not find the person to be willfully and voluntarily

underemployed.” Chase, 670 S.W.3d at 293. We conclude that the evidence preponderates

against the trial court’s finding that Husband was voluntarily underemployed. To the

extent that this finding impacted the trial court’s alimony determination, this finding is

vacated.17

17

It is not entirely clear how the trial court’s finding of voluntary underemployment actually

impacted its determination of Husband’s earning capacity and ultimate award of alimony. The section of

the divorce decree regarding Husband’s earning capacity spanned 43 paragraphs and included a five-year

calculation of Husband’s average income. Then, in the final paragraph, the trial court included the two

sentences quoted above regarding voluntary underemployment and, apparently for purposes of comparison,

stated that its five-year average income calculation was “approximate” to the average amount Husband

earned at the Blount Law Firm historically ($87,433) combined with the average amount Husband earned

during his two years at the other firm ($170,094), totaling $257,527.33. However, the trial court utilized

the five-year average throughout the remainder of the divorce decree, rather than these figures.

In any event, however, we note that simply combining Husband’s average income from the years

he worked exclusively at the Blount Law Firm with his average annual income from the other firm would

not accurately assess Husband’s earning capacity, even if we had found that he should have continued his

employment there. Husband testified that working at the other firm diminished the income he received

from the Blount Law Firm because he was not actively pursuing cases for the Blount Law Firm and “gave”

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2. Wife’s Earning Capacity

Next, we consider Husband’s contention that the trial court erred in its calculation

of Wife’s imputed income or earning capacity upon finding her voluntarily

underemployed. Husband agrees with the trial court’s finding of voluntary

underemployment but argues that the trial court erred in imputing income to her of only

$33,378 per year, the amount she earned during the marriage while working at the private

Christian school where the children attended. He notes that Wife was only 49 years old

and in good health, she had a master’s degree in education and many years of teaching

experience, and she only worked at the private school during the marriage in order to

receive the tuition discount and health insurance it provided for the family. Husband notes

Wife’s testimony that she was told she could earn between $45,000 and $60,000 in her first

year selling insurance for State Farm. Considering these facts, he argues that the trial court

should have imputed income of $60,000 to Wife.

“The determination of a party’s potential income is a question of fact that requires

careful consideration of all the attendant circumstances.” Levy v. Levy, No. W2023-01124-

COA-R3-CV, 2024 WL 3747842, at *5 (Tenn. Ct. App. Aug. 12, 2024) (citing Pearson v.

Pearson, No. W2018-01188-COA-R3-CV, 2019 WL 2394247, at *6 (Tenn. Ct. App. June

6, 2019)). Earning capacity means “‘[a] person’s ability or power to earn money, given

the person’s talent, skills, training, and experience.’” Id. at *5 (citing Black’s Law

Dictionary (11th ed. 2019)) (emphasis omitted). As such, determining a party’s earning

capacity “requires consideration of the party’s circumstances and qualifications, including

their age, past and present employment, education and training, and ability to work.” Id.

Wife testified that she had “ma[d]e a sacrifice” by working at the private school

throughout the marriage because she could have been “making more money at a public

school.” When questioned about her decision to leave the education field, she testified that

she did not take any steps to reactivate her teaching license “because, honestly, I think I

can make beyond the 30,000.” She added, “[I]n this new career my potential and aspiration

is to make more than that.” She became employed with State Farm in October 2020. At

the time of her deposition in April 2021, Wife was asked, “what do you believe your

earning capacity to be at State Farm,” and she testified that it was “anywhere between 45

to 60,000 in the first year.” At the time of trial two months later, she had switched to a

different agent but remained with State Farm. When asked if she still expected to make

between $45,000 and $60,000 in her first year, Wife responded, “I honestly don’t know

how much I’m going to make. I’m just going to put in all the time and effort I can.”

most cases to the other firm under their fee arrangement. Thus, it is not reasonable to believe that Husband

could, in a single year, earn the combined amount of his annual income from the other firm in addition to

what he earned while working exclusively for the Blount Law Firm.

- 36 -

In the trial court’s findings relevant to Wife’s voluntary underemployment, it

specifically found that she “could have taken steps to renew her teaching certificate to teach

in public schools after leaving [the private school] where she testified, she could make more

money.” (emphasis added). At the same time, however, the court ultimately found it

appropriate to impute income only at the level Wife made at the private Christian school,

deeming it “a good indicator of her earning potential and not the speculative amount of

what she could possibly earn at some point in the future.” We agree with Husband that

Wife has the ability to earn more money than she made at the private school during the

marriage. As she states in her own brief on appeal, “Wife freely admitted that teaching at

[the Christian school] was a ‘sacrifice’ she made for the sake of the parties’ children,” and

“she could have earned a higher salary in a public school.” The trial court also noted Wife’s

testimony that she was told she could earn between $45,000 and $60,000 “in her first year

selling insurance,” but it found that she had switched agents two months earlier and now

“does not know how much she is going to make.” Still, it found that she had “secured

employment that has the potential to earn at or more than what she made as a teacher.” We

agree with Husband that the evidence preponderates against the trial court’s factual finding

of Wife’s earning capacity at only $33,378. Considering Wife’s age, past and present

employment, education and training, and ability to work, see Levy, 2024 WL 3747842, at

*5, we conclude that the evidence supports a finding that Wife has an earning capacity of

at least $45,000 per year, or $3,750 per month. Wife’s affidavit of income and expenses

listed her current mandatory deductions from her income at $319.56 per month based on

an annual income of $28,069. Therefore, we will estimate deductions of $500 and a

monthly net income of $3,250. Cf. Egan v. Egan, No. M2018-01858-COA-R3-CV, 2020

WL 2761261, at *4 (Tenn. Ct. App. May 28, 2020) (deducing “an approximate amount of

need” and stating that courts have not been required to find a specific dollar amount of

need in every instance).

3. Class Action Fees

The next issue Husband presents on appeal is whether the trial court erred in

calculating his income “by including two large fees in its calculation that Husband earned

after Wife’s filing for divorce, fees that are not representative of what Husband historically

earned throughout the course of the marriage.” He argues that “the trial court improperly

disregarded the opinion of Husband’s expert and adopted the opinion of Wife’s expert” on

this issue, effectively giving the class action fees too much “weight” in its calculation of

his earning capacity.

Tennessee courts routinely consider a party’s previous earnings when determining

earning capacity. Levy, 2024 WL 3747842, at *5. “Taking pre-divorce earnings into

account is proper and consistent with the court’s responsibility under Tenn. Code Ann. §

36-5-121(i) in determining an initial award of alimony.” Bordes v. Bordes, 358 S.W.3d

623, 630 (Tenn. Ct. App. 2011). Because the trial court’s determination of Husband’s

earning capacity in this case was also made for the purposes of its child support

- 37 -

determination, and some of these principles were mentioned during the expert testimony,

we also note certain rules applicable to child support determinations. See Jensen v. Jensen,

No. E2023-00315-COA-R3-CV, 2024 WL 4032972, at *23 & n.6 (Tenn. Ct. App. Sept. 4,

2024) (noting in its alimony analysis the child support guideline regarding averaging of

variable income, even though the husband did not raise an issue regarding child support on

appeal, “given that the [trial] court’s income determination for Husband was also integral

to the setting of his child support obligation”).

Pursuant to the Child Support Guidelines, “[v]ariable income such as commissions,

bonuses, overtime pay, dividends, etc. shall be averaged over a reasonable period of time

consistent with the circumstances of the case and added to a parent’s fixed salary or wages

to determine gross income.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(b). Although

this guideline specifically addresses variable “components of income,” the same reasoning

applies to a parent whose total income is variable. Smith, 2001 WL 459108, at *5.

However, “the Guidelines do not specify how to average the incomes.” Hayes v. Hayes,

No. M2014-00237-COA-R3-CV, 2015 WL 1450998, at *4 (Tenn. Ct. App. Mar. 26, 2015).

Thus, “in determining income for the purposes of child support and alimony, ‘it is left to

the courts to determine on a case-by-case basis the most appropriate way to average

fluctuating income.’” Jensen, 2024 WL 4032972, at *23; see, e.g., Tinsley v. Tinsley, No.

M2001-02319-COA-R3-CV, 2002 WL 31443210, at *5 (Tenn. Ct. App. Nov. 1, 2002)

(concluding that “the trial court’s choice of the most recent three full years of income

information as the basis for averaging falls within the range of acceptable alternatives” but

recognizing “the possibility that a parent could demonstrate specific circumstances making

a particular year or set of years undependable for purposes of determining current actual

income”).

In Siegel v. Siegel, No. 02A01-9708-CH-00198, 1999 WL 135090, at *5 (Tenn. Ct.

App. Mar. 5, 1999), this Court considered how to determine a husband’s earning capacity,

for purposes of alimony and child support, when he had recently left a law firm and started

practicing as a solo practitioner. The trial court based its income calculation on the last

five months of 1996, when the husband worked at the solo practice, concluding that his

income at the law firm was low because he spent so much time representing himself in the

divorce case and was not representative of his future earning capacity. Id. at *5-6. On

appeal, the husband argued that “the increase in his compensation during the last five

months of 1996 was due to two significant contingent fee settlements,” and therefore, “the

trial court erred in calculating alimony and child support based only on his increased

income from the last five months of 1996 rather than his average income over the entire

year of 1996.” Id. at *5. On appeal, this Court reversed the trial court, concluding that it

erred in basing its calculation on those five months. Id. at *6. We acknowledged that the

husband “underperformed” while at the law firm but pointed out that “the greater earnings

in the latter half of 1996 were at least partially due to two large settlements.” Id. We

added, “There is no indication whether Husband will continue to receive large settlements

on a regular basis.” Id. We declined to use a two-year average because that approach

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would place “unfair emphasis” on his lower earnings at the firm. Id. As such, we

determined that a one-year average would “best reflect his income and earning capacity for

the purpose of determining child support and alimony.” Id.

“‘Tennessee courts have displayed a preference for long-term averaging as the most

appropriate method for calculating income that is variable in nature.’” Marcel v. Marcel,

No. M2021-00594-COA-R3-CV, 2022 WL 17335655, at *6 (Tenn. Ct. App. Nov. 30,

2022) (quoting Burnett v. Burnett, No. W2007-00038-COA-R3-CV, 2008 WL 727579, at

*11 (Tenn. Ct. App. Mar. 19, 2008)); see also Hanselman v. Hanselman, No. M1998-

00919-COA-R3-CV, 2001 WL 252792, at *3 (Tenn. Ct. App. Mar. 15, 2001) (noting that

“short duration averaging will undermine the stability, predictability, and definiteness of

child support” and “prompt more litigation”). “In general, courts have tended to average

variable income over as long a time period as circumstances permit.” Turney v. Turney,

No. W2001-00492-COA-R3-CV, 2002 WL 1349503, at *3 (Tenn. Ct. App. Feb. 15, 2002);

see, e.g., Jensen, 2024 WL 4032972, at *23-24 (affirming the use of a three-year average

of income from 2017 to 2019 when the husband “did not present a complete picture of his

income for 2020 or 2021”); Buntin v. Buntin, 673 S.W.3d 593, 607 (Tenn. Ct. App. 2023)

(affirming the use of a four-year average); Waddell v. Waddell, No. W2020-00220-COA-

R3-CV, 2023 WL 2485667, at *46 (Tenn. Ct. App. Mar. 14, 2023) (finding the evidence

did not preponderate against an earning capacity of $1 million when the husband earned

average wages between 2013-2017 of $1,281,652 but his wages in 2016 and 2017 were

only $734,506 and $758,408); Egan, 2020 WL 2761261, at *4 (affirming the trial court’s

determination of an earning capacity “just under the five-year monthly average” according

to the parties’ tax returns); Andrews v. Andrews, 344 S.W.3d 321, 343 (Tenn. Ct. App.

2010) (concluding that the evidence supported a finding that the husband could maintain

an income of $850,000 per year when his average gross income in the four years prior to

trial was $895,161 but he testified that he would soon be losing some of his “moonlighting”

income).

Here, the trial court determined that a five year average was appropriate. It rejected

Mr. Pascal’s opinion that a two or three year average was appropriate, noting that

Husband’s income had varied from 2015 to 2019 and that Mr. Pascal had “no factual basis

for his opinion that Husband will make the same in 2021 or 2022.” Neither party argues

on appeal that the trial court erred by adopting a five-year average, and we conclude that a

five-year average was appropriate in this case given Husband’s variable income and his

two extraordinary years. The precise issue Husband raises is whether the trial court erred

in its consideration of the two large class action fees by assigning those fees only to the

years when they were received, within that five year averaging period.

Wife’s expert, Mr. Pascal, proposed including all of the fees in the years they were

received, explaining his position that “for support purposes, when you receive the money

is when it is earned.” As support for his opinion that income should be “based on the year

in which cash payments are received,” his report cited the definition of a “contingent fee”

- 39 -

from “Law.com.” Mr. Pascal was aware that the two class action cases had been filed years

earlier but noted that he did not see any records reflecting when the work was done. He

admitted that he had no knowledge of how “work intensive” a class action lawsuit is. Even

assuming that Husband “worked” on a lawsuit for years, however, Mr. Pascal said that it

is his practice to record income when it is received, and he noted that the IRS also views

income as earned when it is received.

Husband’s expert, Ms. MacAulay, used a different approach. She divided the fee

of $421,863 received in the Methodist case by the thirteen years the case was pending so

that $30,868 of the fee was allocated to each year between 2007 and 2020. She used the

same procedure for the Cemetery case, allocating the fee of $288,404 over the number of

years the case was pending, back to 2014, assigning $52,360 to each of those years. For

the years when both suits were pending, she added $83,228 to Husband’s other income for

those years. She believed that it was appropriate to average the fees in this manner because

this was not income regularly received, he had no other class action lawsuits and or similar

cases pending, and these two cases lasted for periods of thirteen and six years. She opined

that including all of the income in the years received was inappropriate because that

approach did not represent what Husband has made historically. At trial, Wife’s counsel

criticized Ms. MacAulay’s approach as “remarkably flawed math.” She argued that it was

“absurd” to suggest allocating a class action fee over the life of the case and insisted that

“there are no cases to support such a position.”

At the outset, we recognize that “[t]here are no hard and fast rules for spousal

support decisions.” Perkins v. Perkins, No. W2021-01246-COA-R3-CV, 2023 WL

2446807, at *4 (Tenn. Ct. App. Mar. 10, 2023) (citing Anderton v. Anderton, 988 S.W.2d

675, 682 (Tenn. Ct. App. 1998)). However, Ms. MacAulay’s approach is not without some

support. In Bordes v. Bordes, 358 S.W.3d 623, 625-26 (Tenn. Ct. App. 2011), this Court

considered the earning capacity of a husband who owned a pest control franchise at the

time of his divorce in 1999 but sold the franchise in 2009 and purchased a restaurant. The

franchise sold for $409,137.70. Id. at 630. He filed a petition to modify his alimony

obligation, claiming a decrease in income. Id. at 625. We found that the proceeds from

the sale of the franchise “produced income to Husband during a portion of the ten year

period at issue; this could properly be considered as evidence of Husband’s ability to pay

in accord with Tenn. Code Ann. § 36-5-121(i)(1) and it is appropriate to consider this

amount in the determination of earning capacity.” Id. at 630. However, we decided to

divide the amount of $409,137.70 by the ten years that lapsed between the divorce and the

sale of the franchise, resulting in a figure of roughly $25,000 per year. Id. at 630-31. We

then considered the allocated sum in addition to all other evidence bearing on his earning

capacity and found his earning capacity to be $75,000 per year. Id. at 631.

In some cases, we have deemed it appropriate to exclude one-time sources of income

when determining a spouse’s earning capacity for purposes of alimony. See, e.g., Knizley

v. Knizley, No. M2018-00490-COA-R3-CV, 2019 WL 6358208, at *5 (Tenn. Ct. App.

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Nov. 27, 2019) (concluding that the record supported the trial court’s finding that the

husband “averaged a net monthly income of $33,168.00 over the last six (6) years,

exclusive of a one-time payment of $1.16 million he had received in 2015 as a result of a

7-year project that has now concluded”) (emphasis added); Lunn v. Lunn, No. E2014-

00865-COA-R3-CV, 2015 WL 4187344, at *12 (Tenn. Ct. App. June 29, 2015) (finding a

2011 tax return was the best evidence of a husband’s income because it reflected growth

in his dental practice “but did not include the supplemental income he received in 2010

while working for the separate practice in Memphis” as such income “would likely not

recur in the future”). In Small, 2010 WL 334637, at *6, the husband was a lawyer and

earned sums of “$326,375.00 for 2002; $347,818.00 for 2003; $212,163.00 for 2004;

$309,749.00 for 2005; $427,730.00 for 2006; and $1,124,704.00 for 2007.” According to

the husband, “the unusually large amount of income earned in 2007 was because ‘the SEC

kept extending the deadline for little company compliance’ with the Sarbanes-Oxley Act

‘until December of 2007 . . . [s]o they had to get out of the system by the end of the year .

. . That’s why this year was such a big rush.’” Id. On appeal, we determined his earning

capacity for purposes of spousal and child support to be $250,000, explaining that “we

have taken the difference between Husband’s $150,000.00 salary and his average salary

for the years 2002-2006 (excluding 2004 and 2007) of $352,000.00.” Id. (emphasis added).

Likewise, in Halliday v. Halliday, No. M2011-01892-COA-R3-CV, 2012 WL 7170479, at

*6 n.9 (Tenn. Ct. App. Dec. 6, 2012), we considered the same “model” employed in Small

to determine a husband’s earning capacity by “averaging his income at the time of trial

with his historical income average, which was calculated by using six years of tax returns

and disregarding the most and least profitable years.” Id. Thus, we disregarded the most

and least profitable years “as outliers.” Id. See also In re Conservatorship of King, No.

M2014-01207-COA-R3-CV, 2015 WL 4746810, at *9 (Tenn. Ct. App. Aug. 6, 2015)

(citing Small and Halliday for the notion that “courts may exclude ‘outliers’ in determining

averages for matters like expenses or income”).18

This Court has also considered how to treat “one-time income amounts” such as

inheritances or capital gains for the purposes of calculating child support. Collins v.

Harrison, No. M2023-00248-COA-R3-JV, 2024 WL 1750072, at *6 (Tenn. Ct. App. Apr.

24, 2024). Although these sums must be considered as income under the Child Support

Guidelines, “[i]nherited amounts may be averaged over a period of years rather than

counted as income for only one year.” Id. Similarly, “proration of [capital] gains over

time is permitted.” Id. Thus, “the Guidelines afford the court discretion to average variable

income or prorate one-time income amounts such as an inheritance or capital gain.” Id.

For instance, in Wadhwani v. White, No. M2015-01447-COA-R3-CV, 2016 WL 4579192,

at *17 (Tenn. Ct. App. Aug. 31, 2016), a father received $107,000 in inheritance from a

18

When discussing the fees during closing arguments at trial, Husband’s counsel stated, “Your

Honor could realistically say, you know what, we ought not to include any of that in his prospective income

going forward because there’s no evidence that there’s anything like that that’s going to happen again.”

But he added, “That’s not the position we’re taking in this case.”

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relative’s estate, and the trial court concluded that the amount should be included in his

gross income, but it determined the amount “should be averaged over a period of ten years

rather than counted as income for one year.” Id. On appeal, we found the trial court’s

approach of dividing the total sum over a ten-year period was “fair and equitable.” Id. We

explained, “To have counted this entire sum as income for one year would have produced

a falsely elevated child support award, which Father would likely be unable to maintain

once the inherited funds were depleted.” Id. See also Alexander v. Alexander, 34 S.W.3d

456, 463-64 (Tenn. Ct. App. 2000) (prorating capital gains over the number of years the

stock was held by assigning a “per-year allocation” to each year).

Considering the various approaches taken in these cases, we agree with Ms.

MacAulay’s position that averaging or proration is appropriate in this case given the

isolated nature of the two class action settlements. As we observed in Wadhwani, to count

the entire sums as income in the years received would produce a “falsely elevated” award

that Husband would likely be unable to maintain going forward. 2016 WL 4579192, at

*17. Indeed, Mr. Pascal calculated the Blount Law Firm’s adjusted total income at $95,644

for 2018; $142,041 for 2019, and for 2020, he calculated it at $464,296. Husband had

never earned such income historically. Adding these figures to Husband’s W-2 income

from the other firm from 2019 and 2020, Mr. Pascal calculated Husband’s 2019 total

income at $268,108, and his 2020 income at $678,417. This is simply not a realistic picture

of Husband’s earning capacity for purposes of paying alimony. To illustrate the difference,

we note that Ms. MacAulay calculated Husband’s total gross income, including his W-2

income from the other firm, as follows: $165,920 in 2015; $182,064 in 2016; $179,699 in

2017; $179,550 in 2018; $154,617 in 2019; and $309,817 in 2020. Again, earning capacity

means “[a] person’s ability or power to earn money, given the person’s talent, skills,

training, and experience.” Levy, 2024 WL 3747842, at *5 (quotation omitted). It requires

consideration of Husband’s circumstances and qualifications, including age, past and

present employment, education and training, and ability to work. Id. Considering all the

circumstances in this case, we deem the proration approach utilized by Ms. MacAulay as

the more accurate approach for determining Husband’s earning capacity and agree that the

class action fees should be allocated over the period of years when Husband worked on

those cases.

To the extent that Mr. Pascal suggested that this method would amount to averaging

upon averaging, we do not deem it impermissible under the circumstances of this case,

involving variable income in addition to the receipt of income that may be prorated over a

number of years. See, e.g., Smith v. Smith, No. 01A-01-9705-CH-00216, 1997 WL 672646,

at *3 (Tenn. Ct. App. Oct. 29, 1997) (“Since Mr. Smith apparently accumulated his stock

options during the entire period of his employment at Comdata, and not just during the year

in which he exercised them, it might be equitable to average his capital gains over that

entire period, or to prorate them in some way, rather than just averaging them over the

three year period that was used for calculating his average salary, commission and bonus.

The trial court may take proof on the process by which the options were acquired, in order

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to make this determination.”) (emphasis added).

4. Cost of Goods Sold Deduction

The next issue raised by Husband on appeal pertains to the deduction for “cost of

goods sold” on his 2019 tax return. Wife’s expert, Mr. Pascal, testified that when he was

evaluating Husband’s income, he questioned a deduction Husband took on his income tax

return in 2019 for $85,763 for “cost of goods sold” because a law firm does not “per se”

have a cost of goods sold or sell inventory. He said Husband was asked about this

deduction during his deposition and deferred to his CPA. Finding no support for that

amount, Mr. Pascal proposed adding the sum of $85,763 back to Husband’s income for

2019. He noted that Husband’s tax returns had only included a cost of goods sold deduction

in one other year, back in 2015. On cross-examination, Mr. Pascal acknowledged that

Husband had taken large deductions for “operating expenses” in past years, but in 2019,

he had taken a smaller deduction for “operating expenses” and a separate deduction for

“cost of goods sold.” For instance, Husband’s deduction for operating expenses in 2018

was $127,804, and in 2019, the total of his operating expenses deduction ($29,341) and his

cost of goods sold deduction ($85,763) was roughly $115,000. Mr. Pascal was also aware

of Husband’s position that he deferred to his accountant to prepare the tax returns but

“assumed” that both deductions represented his operating expenses considering that he

does not sell goods. However, Mr. Pascal did not accept this explanation. He noted that

when Wife’s counsel tried to get information from Husband’s tax preparer “regarding the

make up of the numbers in the tax return,” the tax preparer claimed that “he didn’t have

anything,” which Mr. Pascal found “highly unusual.”

When determining Husband’s net income for 2020 (as his tax return for 2020 had

not yet been filed), Mr. Pascal again used in his calculation only the reduced “operating

expenses” amount from 2019 of $29,341. Mr. Pascal was asked if it would have been more

accurate to calculate 2020 using either the 2018 operating expense figure of $127,804 or

the combined deductions from 2019 of roughly $115,000. He said that he did not utilize

those figures because “there was no evidence from the CPA as to how he came up with

$85,763” for the cost of goods sold deduction, and also, Husband went to work for the

other firm at the end of 2018 and presumably would not have had as many overhead or

operating expenses.

Ms. MacAulay again used a different approach than Mr. Pascal. In determining the

net income of the Blount Law Firm in 2019, she deducted the operating expenses and the

cost of goods sold. Likewise, for 2020, she used the same operating expenses and cost of

goods sold from 2019. Thus, Ms. MacAulay acknowledged that one difference in her

report and Mr. Pascal’s report was that Mr. Pascal did not include the deduction of $85,763

when calculating net income. Ms. MacAulay conceded that when she started reviewing

Husband’s returns, his deduction for cost of goods sold “popped out at me.” She stated

that she called Husband’s CPA for an explanation. However, the trial court sustained a

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hearsay objection as to what Ms. MacAulay was told by the CPA. The trial court also

sustained an objection and excluded a report that was provided to Ms. MacAulay by the

CPA because the information was subpoenaed and requested in discovery but not provided

by the CPA. After these rulings, Ms. MacAulay went on to testify that typically the “cost

of goods sold” represents a situation when a business buys goods and sells them that year

and reports the cost of the goods sold. She acknowledged that she was not aware of

Husband purchasing or selling any goods. However, Ms. MacAulay testified that she had

another client who was a personal injury lawyer whose tax returns recorded “cost of goods

sold” for his case expenses, so she had “seen that treatment before.”

Ms. MacAulay also testified that Husband’s “total expenses” on his Schedule C in

past years was fairly consistent: $118,901 in 2016; $111,372 in 2017; $127,804 in 2018;

and in 2019, $29,341 plus “Cost of Goods Sold” of $85,763. Because the previous

deductions were “all consistent” with the combined deductions for 2019, Ms. MacAulay

explained that she “felt comfortable” utilizing both figures and carrying them over into her

calculation for 2020. She also noted that the Blount Law Firm almost doubled its revenue

in 2020, so “one would assume” that when your revenue has increased you would also have

at least as much in expenses. In sum, Ms. MacAulay explained that she did not think it

“look[ed] right” for Husband’s expenses to drop from roughly $132,000 to $29,000.

During cross-examination, Ms. MacAulay was asked if she considered the fact that

Husband sold the Collierville office building and started working for the other firm at the

end of 2018, to the extent that this would impact the amount of his business expenses in

2019. She said that “[j]ust because he didn’t have a building doesn’t mean he didn’t have

the expenses.” She noted that Husband was still working on cases for the Blount Law

Firm, and the sale of the building “doesn’t mean he didn’t have other expenses.”

In the final decree of divorce, the trial court found that Mr. Pascal questioned the

deduction for cost of goods sold “because attorneys don’t sell inventory,” Husband never

provided support for it when requested, he had only taken this deduction in one other year,

and he was employed by the other firm in 2019 and 2020, having sold his building and no

longer incurring the “major overhead or expenses” of maintaining a physical building for

the Blount Law Firm. The trial court was “not persuaded” that the deduction for cost of

goods sold was simply additional operating expenses because a separate deduction was

taken for that category of expenses. Finally, the court noted that “Husband’s credibility is

in question as he never supplied the information to Wife’s Counsel supporting this

contention though requested and there is no other evidence in the record to support the cost

of goods sold.” As such, the trial court declined to consider the deduction for cost of goods

sold, added it back to Husband’s income, and did not consider it for purposes of

determining his income in 2020.

We cannot say that the evidence preponderates against the trial court’s findings on

this issue. Although Ms. MacAulay pointed out that the combination of Husband’s two

deductions was consistent with his operating expenses historically, we recognize that by

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2019 and 2020, Husband had sold the Collierville building and was primarily working for

the other firm. Husband testified about the “very high” expenses associated with

maintaining the Collierville building. Ultimately, like the trial court, we note that Husband

could have produced the underlying documentation to support the deduction he claimed on

his tax return, and he simply failed to do so. Given the trial court’s concern about

Husband’s credibility with respect to this issue, we discern no error in its decision to

exclude any deduction for the cost of goods sold in its calculations of his net income.

Utilizing Ms. MacAulay’s calculation of Husband’s annual gross income, because

she allocated the class action fees over the appropriate years, we adjust her figures as

follows: $182,064 in 2016; $179,699 in 2017; $179,550 in 2018; for 2019, $154,617 +

$85,763 = $240,380; and for 2020, $309,817 + $85,763 = $395,580. With these

adjustments, the five-year average annual income for Husband would therefore equal

$235,454.60, or $19,621.21 per month. Husband’s statement of income and expenses

estimated his tax liability at 25%, so we will calculate his net income in the same manner.

Subtracting his estimated tax liability, Husband would have monthly net income of

$14,715.90. We recognize that these numbers are still high considering Husband’s

historical income earned throughout the marriage from the Blount Law Firm. However,

we note that these are the calculations proposed by Husband’s own expert, as adjusted on

appeal in consideration of the issues presented to this Court.

5. The Trial Court’s Awards of Alimony in Futuro and Transitional Alimony

Having considered Husband’s various issues regarding the calculation of the

parties’ earning capacities, we now turn to his contention that the trial court failed to “make

a just and fair consideration” of the statutory factors in making its awards of alimony. As

previously discussed, the trial court awarded $3,300 in alimony in futuro, $1,000 per month

in transitional alimony until the marital home sold, and $1,000 per month in alimony in

solido for twenty-five months.

The Tennessee Supreme Court has explained the various types of alimony and the

principles that guide our analysis as follows:

Tennessee recognizes four distinct types of spousal support: (1)

alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4)

transitional alimony. Tenn. Code Ann. § 36-5-121(d)(1) (2010 & Supp.

2012). Alimony in futuro, a form of long-term support, is appropriate when

the economically disadvantaged spouse cannot achieve self-sufficiency and

economic rehabilitation is not feasible. Gonsewski, 350 S.W.3d at 107.

Alimony in solido, another form of long-term support, is typically awarded

to adjust the distribution of the marital estate and, as such, is generally not

modifiable and does not terminate upon death or remarriage. Id. at 108. By

contrast, rehabilitative alimony is short-term support that enables a

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disadvantaged spouse to obtain education or training and become self-reliant

following a divorce. Id.

Where economic rehabilitation is unnecessary, transitional alimony

may be awarded. Transitional alimony assists the disadvantaged spouse with

the “transition to the status of a single person.” Id. at 109 (internal quotation

marks omitted). Rehabilitative alimony “is designed to increase an

economically disadvantaged spouse’s capacity for self-sufficiency,” whereas

“transitional alimony is designed to aid a spouse who already possesses the

capacity for self-sufficiency but needs financial assistance in adjusting to the

economic consequences of establishing and maintaining a household without

the benefit of the other spouse's income.” Id. Consequently, transitional

alimony has been described as a form of short-term “bridge-the-gap” support

designed to “smooth the transition of a spouse from married to single life.”

Engesser v. Engesser, 42 So.3d 249, 251 (Fla. Dist. Ct. App. 2010).

....

Tennessee statutes concerning spousal support reflect a legislative

preference favoring rehabilitative or transitional alimony rather than alimony

in futuro or in solido. See Tenn. Code Ann. § 36-5-121(d)(2)-(3); Gonsewski,

350 S.W.3d at 109. Not even long-term support is a guarantee that the

recipient spouse will be able to maintain the same standard of living enjoyed

before the divorce because “two persons living separately incur more

expenses than two persons living together.” Gonsewski, 350 S.W.3d at 108

(quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)).

Although the parties’ standard of living is a factor courts must consider when

making alimony determinations, see Tenn. Code Ann. § 36-5-121(i)(9), the

economic reality is that the parties’ post-divorce assets and incomes often

will not permit each spouse to maintain the same standard of living after the

divorce that the couple enjoyed during the marriage. Gonsewski, 350 S.W.3d

at 113. Decisions regarding the type, length, and amount of alimony turn

upon the unique facts of each case and careful consideration of many factors,

with two of the most important factors being the disadvantaged spouse’s need

and the obligor spouse’s ability to pay. Id. at 109-10.

Mayfield, 395 S.W.3d at 115-16.

In the case before us, Husband argues that Wife has the ability to support herself,

he has no ability to pay, and therefore, the trial court erred in awarding any alimony in

futuro or transitional alimony to Wife. He does not suggest that an award of rehabilitative

alimony would have been appropriate, so we will limit our review to the arguments

presented on appeal. He argues that the trial court failed to consider all the statutory factors

for consideration and abused its discretion in determining his ability to pay and Wife’s

need. He also argues that he “has effectively paid Wife all the transitional alimony he

should be required to pay throughout the years of

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