Rosalynn Addis v. Ryan Keith Addis

07/15/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 5, 2025 Session

ROSALYNN (VICTOR) ADDIS v. RYAN KEITH ADDIS

Appeal from the General Sessions Court for Wilson County

No. 2020-DC-104 A. Ensley Hagan, Jr., Judge

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No. M2024-00668-COA-R3-CV

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This appeal arises from a divorce proceeding in which the trial court adopted the wife’s

marital property division and the wife’s proposed permanent parenting plan, found the

husband willfully unemployed and imputed his income at $252,850.50 per year for child

support purposes, and awarded the wife rehabilitative alimony, alimony in futuro, and a

judgment in the amount of $43,407.50 for attorney’s fees. Husband appeals. We affirm in

part and vacate in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court

Affirmed in Part, Vacated in Part, and Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which W. NEAL

MCBRAYER and JEFFERY USMAN, JJ., joined.

Wesley Clark, Nashville, Tennessee, for the appellant, Ryan Keith Addis.

Donald Capparella and Jacob A. Vanzin, Nashville, Tennessee, for the appellee, Rosalynn

Victor Addis.

OPINION

I. FACTS & PROCEDURAL HISTORY

Ryan Keith Addis (“Husband”) and Rosalynn Victor Addis (“Wife”) were married

on April 29, 2007, in California. At that time, Husband was a college graduate and had

completed his master’s degree in business administration. Wife had graduated from high

school, and at some point, had taken a few community college classes but never obtained

a degree. The couple had two children born during the marriage: a son born in 2008, and

a daughter born in 2014. Wife had worked in mortgage origination, held a California real

estate license, and had worked in several administrative and assistant-type roles. However,

after the parties’ son was born, Wife became a stay-at-home mother and later began

homeschooling the children. Husband had a history of working in mortgage origination

when the parties married and had owned an interest in a mortgage origination firm when

the parties met.

It appears when the couple married that Husband was working as an executive

director for an organization called the Latin Business Association, but soon thereafter he

transitioned to a position at Bank of America. Shortly before the parties’ son was born,

Husband resigned from his job at Bank of America because he had determined that he was

going to be laid off. The couple filed for bankruptcy later that year and moved in with Mr.

Addis’s parents for about six months. Husband then began working at Live Oak Bank but

was laid off shortly after due to the financial crisis. Husband worked in a variety of

business ventures, including a lifestyle magazine and a membership club associated with

Four Seasons Hotels and Resorts. Eventually, he returned to the financial industry and

accepted a job at Union Bank with the intent to also begin operating his own “search fund”

business in which he would search for businesses to acquire, manage, and sell at a profit.

Meanwhile, Wife was still acting primarily as a homemaker but did engage in a few part

time activities including a part time office management role at a business owned by a friend

of Husband, and her own jewelry making business.

Husband was laid off from Union Bank in 2014, at which point he formed a limited

liability company known as “Oak Stream Partners” (“Oak Stream”). Oak Stream was a

search fund through which Husband sought to identify other companies as acquisition

opportunities, negotiate letters of intent to purchase the companies at a certain price and

subject to certain conditions, and then work to raise capital from investors to purchase the

companies while also using the letters to leverage himself into acting as the companies’

CEO. Husband then intended to run any company which Oak Stream acquired for a period

of time, improve its operations, increase its value, and then negotiate its sale at a profit.

After approximately a year and a half working through Oak Stream, Husband was hired as

the Chairman and CEO of SCJ Insurance Services for a salary of approximately $350,000

per year. This salary was well above any Husband had earned in the past. Husband

dissolved the search fund, and the family moved from southern California to northern

California. He began working as SCJ’s CEO in January 2015. Husband worked in this

role for almost two years and attempted to find a buyer for the company, but prior to

facilitating a sale he was forced to resign from the company in November 2016. It was

during this time that Wife began homeschooling the parties’ son, who was halfway through

kindergarten when the family moved to northern California.

After Husband left SCJ, he again began searching for a company to acquire, run,

and sell. In 2013, prior to his involvement with SCJ, he had traveled to Mt. Juliet,

Tennessee to contemplate the acquisition of a company called Jupiter Insurance. After

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losing his job at SCJ, Husband reestablished contact with the owner of Jupiter Insurance,I

and the family moved to Mt. Juliet in 2016 as he further pursued the acquisition.1 Several

of Husband’s family members, including his parents, his sister, and his brother had already

moved to Mt. Juliet as well.2 Husband worked in a consulting type role at Jupiter in

contemplation of the purchase being completed. However, prior to the transaction closing,

Jupiter lost certain licenses, and the deal fell through in approximately February 2019.

Husband then began pursuing a similar transaction with an insurance company based in

Chicago, Illinois, but this transaction also fell through. Notably, none of the activities

Husband engaged in after his employment at SCJ generated much income. Therefore, after

the move to Mt. Juliet, the family subsisted on savings, investments, and credit cards.

Husband’s reported income was as follows for these years: $411,638 in 2016 (largely

comprised of Husband’s severance pay from SCJ), $23,590 in 2017, and $0 in 2018.

Throughout this time, Wife continued in her role as the homemaker and homeschooled the

children while generating little if any income.

At some point, the parties began experiencing marital difficulties, many of which

seemed to have stemmed from financial instability as well as relational problems between

the spouses. The parties went through several rounds of marital counseling. Meanwhile,

Husband was offered a job with Moss Corporation in July 2019. He accepted the position,

which paid a very high salary, with the understanding that it would require him to move to

Cleveland, Ohio. Husband subsequently moved to Ohio, and it appears both parties

intended that the rest of the family would follow him shortly thereafter. For the next several

months Husband travelled back to Tennessee on weekends while he sought a home for the

family. At one point, he presented Wife with a lease for a house in Ohio which he asked

her to sign. Wife refused to sign the lease unless Husband agreed to undergo more marriage

counseling, but he refused. At that point, Husband returned to Ohio, and the marriage

underwent more strain. Husband stopped visiting Tennessee and did not see the children

for some time, but this eventually changed.

The children travelled to Ohio for a visit in July 2020, approximately one year after

Husband had moved there. The parties’ son was using Husband’s phone when he happened

upon some notifications from a dating app. The child informed Wife of this discovery, and

the parties officially separated on July 9, 2020. Wife then filed a complaint for divorce on

July 16, 2020. Shortly after the complaint was filed, Husband lost his job at Moss

Corporation.

It is unclear from the record what events then transpired, but the next real movement

1

It appears the parties intended to move to Mt. Juliet prior to Husband leaving SCJ as they

purchased the house in March 2016, several months prior to him being forced to resign. It appears that

Husband believed the sale of SCJ was going to occur, at which point the family would move to Mt. Juliet

where he would begin looking for his next opportunity.

2

It appears that Husband’s brother also moved to Mt. Juliet at some point, though it is unclear

whether this occurred before or after Husband and his family moved there.

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in the case did not occur until the parties engaged in an unsuccessful mediation in February

2023. Husband then filed a motion to sell the marital residence, claiming that his income

had “declined significantly since the divorce proceedings began” and the parties could no

longer afford the mortgage payments. Additionally, Wife filed a motion requesting

exclusive possession of the marital residence, approval of a temporary parenting plan,

pendente lite spousal support and child support, to maintain the financial status quo, to

compel discovery responses and to restrain Husband’s trading with the parties’ investment

and retirement accounts. These issues were addressed in a hearing on May 4, 2023. After

the hearing, the trial court entered an order, in which it named Wife the temporary primary

residential parent and adopted her proposed temporary parenting plan but denied her

request to be awarded exclusive possession of the marital residence. Further, the trial court

found testimony from Husband that he had been actively seeking employment was not

credible, and stated that if Husband accepted a job he had been offered at Guitar Center

paying $20 per hour he would be found to be willfully underemployed. The trial court also

ordered Husband to immediately attempt to find a lucrative job to support the family and

set the matter for trial, which was to take place beginning on November 28, 2023.

It is unclear exactly what professional or employment activities Husband had

participated in during the pendency of the divorce. After he was terminated from Moss

Corporation, he apparently began searching for another search fund transaction to pursue

but generated most of his income by trading in stocks. He liquidated a portion of the

parties’ retirement accounts and invested in Tesla stock, which generated a high rate of

return. As the divorce proceedings went on, it appears that the majority of the family’s

expenses were paid by liquidating retirement and investment accounts, savings, and credit

cards. It does appear that at some point in April 2022, Husband became involved with a

company called Ash, Smoke, and Soot LLC (“Ash”), in some type of interim CEO role.

There is nothing in the record describing the business of Ash, or Husband’s activities there.

This position did not generate as much income as some of Husband’s previous ventures

but does appear to have paid him some amount of money in 2022. Additionally, he was

paid $22,171.96 between January 2023 and April 2023 when it appears the company

disbanded. Shortly after this occurred, in May or June 2023 Husband moved from Ohio to

Baton Rouge, Louisiana.

Husband attended the May 4 hearing in Mt. Juliet, and while driving back to Baton

Rouge, he contacted some of the persons who had been members in Ash. As a result of

this, he was able to obtain a job working for Bulldog Adjusters, a company these persons

were associated with. This was a public adjusting firm which would represent homeowners

in negotiating with insurance companies regarding the proceeds to be paid in the event of

a claim. However, after approximately three months, Husband was terminated from this

employment in August 2023, when the owners informed him they had misappropriated

client funds. Husband then began networking and looking for a new job.

While the divorce proceeding remained pending, Wife filed a motion for attorney’s

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fees on October 12, 2023. The trial court granted this request in an order entered on

October 23, 2023, which directed Husband to withdraw $15,000 from the parties’

retirement and/or investment accounts to pay Wife’s fees. Husband later filed a request to

expend funds from the parties’ accounts to pay his own fees, which was granted. The order

directed him to withdraw $25,000 from the accounts to pay his fees, as well as an additional

$18,036.00 to pay toward Wife’s attorney’s fees. Subsequently, Wife filed her demand for

alimony on November 21, 2023, in which she requested alimony in futuro, alimony in

solido, transitional alimony, and/or rehabilitative alimony in the range of $4,000-$4,500

per month and a reduction to $2,500 per month once the parties’ daughter graduated high

school. Husband filed a “pretrial statement” in which he stipulated that he had engaged in

inappropriate marital conduct and the divorce should be granted to Wife, but maintained

the circumstances around the separation and breakdown of the marriage were relevant for

alimony calculations. Husband also stated Wife should be named the primary residential

parent but requested “large chunks of time during the children’s breaks from school.” He

also requested that income be imputed to both parties based on the evidence of their earning

ability. Additionally, Husband requested that child support “be calculated based on

imputation of income to both parties based upon the evidence of their respective earning

ability.”

The trial took place over the course of three days: November 28, November 29, and

December 1, 2023. Both parties were 48 years old at the time of the trial and had been

married for 16 years. Wife continued to reside in the marital home with both children, with

the parties’ son being 15 years old and the parties’ daughter being 9 years old. Husband

was living in Baton Rouge and was still unemployed. However, Wife had begun a part

time position with a local real estate agent, which paid her approximately $500 per month.

The trial began with Wife’s opening statement in which her counsel requested she

be awarded the marital residence, that her parenting plan be adopted but be amended to

include Husband’s proposal that she have the children for 277 days rather than the 267 she

proposed, and again asked for alimony in the amount of $4,500 per month until the parties’

daughter graduated from high school, at which point she would receive a reduced amount.

Husband then offered his opening statement in which his counsel repeated that Wife was

entitled to an alimony award, but asserted she was asking for an unreasonable amount. He

acknowledged that Husband’s income should be imputed for purposes of calculating child

support but asserted it should be based on an average of a long period of his work history

in order to account for high earning and low earning years consistent with his earnings

throughout the marriage.

Wife testified first. She explained that she was residing in Mt. Juliet, Tennessee,

and was still homeschooling the children. Wife was asked about the “story of [her]

marriage,” and she explained that she met Husband when he hired her to work at his

mortgage company. They began dating shortly after and were married in 2007, when

Husband had already obtained his bachelor’s and master’s degrees. She discussed

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Husband’s work history and explained that his jobs always “revolved around being an

executive, a CEO” but stated his income was “somewhat sporadic.” She was also asked

about the family’s moves and stated that they had moved twice during the life of the

marriage, once from southern California to northern California, and then again from

California to Mt. Juliet. She explained that they moved to Mt. Juliet after Husband left his

job at SCJ in part because his parents and sister had moved there, and in part because they

did not want to raise the children in California and landed on Tennessee because it “was

much more family orientated.” She stated that after the move she continued in her role as

the homemaker. Wife claimed that the family was not struggling financially at this point

as they were able to fall back on Husband’s severance pay from SCJ and “he was able to

take his time some to get something” but, “three years later, you know, after going through

our savings, that Ohio job came up.”

Wife was asked why she did not move to Ohio, and she explained that her decision

was based on her desire for stability for the marriage and the children. Wife expounded

upon this, stating that the parties had been through at least six marriage counselors and had

gone through numerous emotional and relational issues which led her to not feeling secure

in the decision to move the family unless they took steps to restore stability in the marriage.

She acknowledged that when Husband brought up the move she initially agreed, but

explained that when he presented a lease, she conditioned her willingness to move on the

couple resuming marriage counseling. She stated that Husband refused to attend

counseling and told her she was “the only one that need[ed] it.” She stated that she later

filed for divorce in July 2020 after her son told her about a dating app on Husband’s phone.

She stated that Husband lost his job at Moss Corporation the next month, and since then he

had never obtained another job making similar money.

Wife was also asked about her role in the family, and she maintained that she was

the primary caretaker, the one in charge of homeschooling the children, and the one who

cared for them when they were sick. She stated that prior to the marriage, she and Husband

agreed that she would be a homemaker if they had children. She explained that the parties

began homeschooling their son when he was halfway through kindergarten and they moved

from southern California to northern California. The parties’ son had exhibited severe

anxiety in the past when being dropped off at things such as a “Mother’s Day Out”

program, and they did not want to place him in a new environment so suddenly. She stated

that when the parties’ daughter reached school age, they continued home schooling because

it was working well for the children. When asked about the idea of moving the children to

public school, Wife responded that she did not believe it would be in the children’s best

interest to do so as it would be disruptive to their lives. She explained that the children

have been homeschooled almost exclusively and son especially is very connected to his

home school group as well as the family’s church group.

Wife was also questioned about her employment history. She stated that she never

had a salary in the $60,000 to $100,000 range and her highest level of education was a high

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school diploma and some junior college classes. She also explained that she did have a

real estate license in California, but stated she only had the license because it was required

for her “to do the mortgage stuff” in California and that she “really didn’t sell real estate.”

She also stated that after the parties’ son was born, she worked part-time in an office doing

administrative work for a friend of Husband. She stated that most of her work experience

was administrative or clerical in nature, and she was not opposed to engaging in this type

of work in the future. She also explained that early in the marriage she would make and

sell jewelry, but this eventually turned into more of a hobby than a career. Wife next

described her employment at the time of the trial, which was a position for a real estate

agent doing marketing and scheduling on a part-time basis. She explained that this position

is very flexible with her schedule. She also stated she was going through the course to

obtain her Tennessee real estate license, but clarified this was only to help in her assistant

role and she would likely not do much selling. She stated that she was working

approximately five hours per week at a rate of $25 per hour for a total of $125 per week at

the time of trial, and she was unsure how much she would make after obtaining her license.

She also stated that she had attempted to find other jobs and had recently begun cleaning

houses in order to have money for the upcoming Christmas season. She further stated that

she would not be opposed to continuing this type of work and had offered to clean houses

for the real estate agent she was working for to place on the market. She stated that she

was continuing to search for additional work opportunities, but averred she was limited in

the roles she could fill as she could not work full-time and still be able to homeschool the

children.

Wife also described Husband’s financial situation between the divorce filing and

the trial. She stated that she had been unaware that Husband had been cashing out money

from their retirement funds to trade stocks but acknowledged the high rate of return. She

stated that at one point earlier in 2023, she had learned Husband was working at Ash and

that there were several deposits in the couple’s checking account between January and

March 2023 amounting to $22,171.96. However, she stated Husband informed her that the

job ended because “they ran out of funds.” She stated that after this Husband obtained the

job at Bulldog Adjusters at a salary of $90,000 per year plus a bonus, but he had been

terminated prior to trial. She stated that other than these, she was unaware of Husband

having had a job since moving to Baton Rouge, and he had not spoken to her about

purchasing a company. Wife stated she was unaware of any job keeping Husband in Baton

Rouge, but stated that she learned of Husband having entered a consulting arrangement

with a travel blogger. However, he was not receiving any regular income from the position,

only commission. No payments from the position had ever been placed in the parties’ bank

account.

Wife also discussed the travel arrangements for the children’s visitation. She went

through both her proposed parenting schedule and Husband’s and noted that one of the

main differences was that Husband’s plan had the children visiting primarily in the summer

months. She stated that the trip from Mt. Juliet to Baton Rouge takes approximately 10

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hours and is hard on her and the kids. She also expressed concern with the amount of time

the children would spend in Baton Rouge if Husband’s plan was adopted. She noted that

Husband was living in a one-bedroom apartment at the time of the trial, and the children

would miss school and church events, and also did not have any friends in Baton Rouge.

She indicated that the children spending basically an entire summer in Baton Rouge would

cause the children to miss events in Mt. Juliet and would conflict with the parties’ son

working a job. She acknowledged that it was in her children’s best interests to spend time

with Husband, but she also wanted them to be able to spend part of their school breaks in

Mt. Juliet. She noted that Husband’s plan was vague in that it proposed 50 or 60 days to

be spent in Baton Rouge during the summer but no other set times of visitation. She also

explained that her plan featured a specific schedule, listing how many days each month

would be spent with each parent, which she believed would be in the children’s best

interests.

Wife next discussed her alimony request. She stated that the house payment at the

time of trial was $1,524.12 per month including taxes and homeowner’s insurance. She

also discussed her income and expense statement for the months leading up to trial which

listed her expenses at around $5,000 per month. However, she later explained on recross

examination that these expenses represented only the “bare necessities” and that moving

forward, she would like to return to a more normal lifestyle and to have money to take

vacations and save. Additionally, she estimated that her mortgage payment would likely

increase to approximately $2,700 per month if she were forced to refinance the home.

While going through her expense sheet, she explained that she was in a precarious financial

position and had done things such as discontinuing the lawncare service and an eye therapy

the couple’s daughter had been undergoing in order to make ends meet. She stated that her

need to stay in the house per month was $7,171.12 and her deficit when taking into

consideration her job was $6,796.12. She again stated that she was seeking $4,500 per

month in alimony until the parties’ daughter graduated high school and $2,500 per month

thereafter. Wife also clarified that though she had $500 per month listed for legal expenses,

the trial court had already ordered them be paid. However, she asked that this amount to

be left on the division to permit her to save a bit of money.

Wife then discussed her proposed property division. She stated that in her proposal

she was seeking to be awarded all of the equity in the home and had moved as many assets

as possible to Husband’s portion of the distribution to facilitate that. She explained that

the couple had a large amount of credit card and other debts, and she believed it would be

equitable to assign the majority of the debt to Husband because his lack of income had

driven the accumulation of much of the debt. Further, she stated that while she was willing

to refinance the home, she needed at least a year to do so in order to have the necessary

documented support from Husband to provide to the lender. She compared this to

Husband’s proposed division, and her primary concern pertained to Husband’s listing of

his student loans in the division as they were incurred prior to the marriage.

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Later, Wife was asked about Husband’s income for child support purposes. She

was asked what amount of income she wished to be imputed to Husband based on his

earning history and education, to which she responded $314,000 per year. Additionally,

Wife stated she was seeking child support in the amount of $2,592 per month as well as an

award of attorney’s fees. She later testified that this calculation was made with help of

counsel using an average of Husband’s recent three to five years of income. She also stated

that she did not believe years in which Husband earned zero dollars or substantially less

than he was capable should be included in his average income. Wife also stated that over

the course of the marriage, Husband engaged in the following cycle: “[h]e would make

money, he would either quit or get fired, and we would live off of savings and kind of

coast, like until push comes to shove, then he’d get a job.” This concluded direct

examination of Wife.

On cross-examination, Wife was again asked about meeting Husband and their early

relationship. She expanded upon her work history at that time, stating she had worked as

a loan officer for Husband’s company when they met, and had also worked at Liberty

Mutual Insurance, as well as a secretary or assistant in a law office, for a builder, and for

an investor. Wife was asked whether the “plan” when they got married was to move around

the country as he pursued various business opportunities. In response, Wife explained that

as a married couple she “would move where there was a job” but regardless of their plan,

they had only had two big moves, one from southern California to northern California, and

then the move to Tennessee. However, she later agreed that there were periods of time

while the couple was living in California that Husband was between opportunities and his

only activity was searching for the next one. She also agreed that there was a pattern in

which Husband would have a high earning position, it would “go bust,” and it would take

a couple of years for him to find the next position.

Next, Husband’s counsel asked Wife about her attempts to obtain a real estate

license in Tennessee. She stated that she expected to be certified within a year. Wife also

described her work schedule in relation to the children’s schedules and said she would only

place them in the public school system as a “last resort.” Later, Husband’s counsel asked

Wife about the retirement accounts Husband had been liquidating. She agreed that

Husband would incur tax liability for those distributions but averred that she did not know

how much. This concluded Wife’s testimony as well as her proof.

Husband was then called to testify. He repeated how he and Wife met and explained

his work. He stated that he works either in start-ups or attempts to find existing businesses

to purchase, manage, grow, and sell and explained how he founded a search fund in order

to do so. Husband then averred that it is difficult for someone of his background and

experience to work in traditional companies because he is viewed as a threat to take over

or a threat to leave. He also explained that he is not a typical candidate for a normal CEO

role as those positions usually require at least ten years in the specific industry. Husband

and his counsel then went through his tax returns between 2008 and 2022 to establish his

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earning history. Husband provided a chart in his brief which summarized these returns by

organizing his gross income by year, which we have reproduced as follows:

2022 $ 18.593

2021 $ 57.472

2020 $ 381,785

2019 $ 123.916

2018 $ 0

2017 $ 23.590

2016 $ 411,638

2015 $ 342.229

2014 $ 57.259

2013 $ 17.449

2012 $ 26,457

2011 $ 40,952

2010 $ 42,800

2009 $ 20,257

2008 $ 92,675

Husband then explained his employment history. He stated that in the late 2000’s

and early 2010’s he had experienced multiple layoffs as a result of the 2008 financial crisis,

and this caused the couple to file for bankruptcy. He said at that point, he went through

several other ventures but then returned to the mortgage field for a short time. He stated

that he obtained a job at Union Bank in 2014, in part to provide him with the income needed

to rent a home and also to provide him with “potential deal flow” needed to pursue a

company acquisition. However, after a short time, he was again laid off. At that point, he

started Oak Stream partners and began raising money, intending to run the search fund full

time. He explained that he ran the search fund until he was recruited by SCJ, an insurance

firm. Husband further explained that this opportunity arose because the owners of SCJ

“naively just thought higher of me than I actually was. I had no insurance experience

whatsoever. . . . They just offered me $350,000 to start so great. It was . . . dumb luck.”

However, this position lasted only two years and ended without him being involved in a

sale. He asserted that the shareholders were taking too much money out of the company

and after he brought a buyer to the board, they forced his resignation and reduced his

severance pay.

He stated at this point the family decided to move to Mt. Juliet and claimed this

decision was in part based on an “investment thesis” he had developed which indicated the

marital home would be lucrative monetary investment based on the existing price and the

rate at which the community and surrounding area were growing. He also stated that he

was working to acquire Jupiter Insurance at this time, but the deal fell through, as did a

deal he worked on with a company based out of Chicago. He stated that during this time

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period, a typical week of work for him would consist of approximately 50 hours and was

spent doing excel sheets to attempt to identify acquisition candidates.

As to his work situation at the time of the trial, he referenced a “work activity

journal” he had started in in October 2023 documenting his attempts to find employment.

This showed that he had applied for approximately fifty positions. He also stated that he

had hired a former soap opera star to coach him in “packaging” his skills and experience

in trying to obtain a position. He also explained his arrangement with a travel blogger and

their attempts to create a travel television show to be picked up by PBS as the next “Rick

Steves’ Europe kind of show.” He stated that other than this arrangement, he had only

been able to find work at Bulldog Adjusters, but explained that position had ended when it

was revealed the owners had been stealing money from clients and he was terminated. He

stated that after this he went back on the job hunt which continues. He stated that he did

not have a regular source of income at the time of the trial and that his arrangement with

the travel blogger is contingent. Regardless, Husband averred that he was using his best

efforts to generate a large amount of income and the only time in his life he was not actively

engaged in furthering his job prospects was when he was finishing his M.B.A. prior to the

marriage. Husband discussed his education a bit more thoroughly at that point and

explained that Pepperdine University where he attained his M.B.A. was not as prestigious

as he had believed prior to enrolling, and this had hindered his ability to work. He was

then asked what he believed to be a fair method of calculating his income to which he

responded that a five-year average of his income would be appropriate as he is only paid

when he attains the high paying jobs. He contended that it takes a lot of work and effort to

obtain those jobs and it would be “unrealistic and completely absurd” to discount that work.

Next, Husband discussed his student loan balance which at the time of the trial was

$145,947.41. He explained that, while the loans had been in deferment, this would not

continue. Because he was on an income-based repayment plan, his expenses regarding

those loans were likely to increase. Husband later explained that he always paid toward

his student loans during the marriage unless they were in deferment, and this happened at

times he was low on cash such as when the parties went through their bankruptcy. He

stated that he would place the loans in deferment in order to meet the family’s needs when

money was scarce, but while he was working at Moss Corporation and earning a high

income, he chose to pay down the family debt rather than his student loans.

Husband also discussed his financial situation at the time of the trial. He stated that

he had been living on credit cards and acknowledged that certain “dating expenses” should

be counted against him in the property division. At this point, Husband explained how he

met his paramour at a professional event when he was working for Ash. She was the owner

of a public adjusting firm with which Husband was trying to obtain a consultant contract.

The two met while he was still living in Ohio, and she was living in Baton Rouge. Husband

denied moving to Baton Rouge to be with his paramour and claimed the two were broken

up at that time. Rather, he asserted that he had moved to Louisiana because he had been

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“sponsored” by a business in Florida which specialized in roof repair and restoration and

therefore he needed to move somewhere where there was “storm activity.” He further

explained that he knew that he needed to stay within a 500-mile radius of Mt. Juliet, so he

chose Louisiana. He also cited the climate, the prevalence of churches in the area, and the

opportunity to pursue an acquisition as reasons he chose to move there.

Husband was then asked about the deterioration of the marriage, and he indicated

that financial stress was an issue. He explained that while the parties were living in Mt.

Juliet, they began to run out of money after his pursuit of transactions was unsuccessful.

At the time he was looking for the Ohio job, the family had a net worth of approximately

negative $40,000, was incurring more credit card debt, and had only 30 days of cash on

hand. He stated that when he received the offer for the job in Ohio it was an answered

prayer and that he anticipated his family would move with him. He then claimed that when

Wife refused to move he considered this an abandonment of the marriage as well as an

impediment to his access to the children. Husband was asked whether he had any issues

regarding Wife’s testimony. He responded that Wife had made several “unfounded claims”

against him as it pertained to his employment, and there was a “crystal clear explanation

on everything” citing his taxable income for 2023 which at the time exceeded $160,000.

He further explained that he did not have incentive to maintain a low income, and the

situation was “eating into [his] IRAs” and he would likely leave the marriage with a

negative net worth. Husband was then asked about the parenting plan arrangement. He

asserted that Wife being forced to drive the children halfway to Baton Rouge for parenting

visits was a “repercussion” to her refusal to move. He agreed that this was why he proposed

in his parenting plan that he should be permitted to exercise his parenting time in “large

blocks” based on the children’s school schedule. He went on to suggest that the children

be placed in public school to permit Wife “flexibility” as she pursued a new career, and

this would permit her to work full-time.

Husband also averred that his proposed parenting plan was designed to provide him

with flexibility, which he would need once he found his next job. Additionally, he

maintained that his proposal would be superior to Wife’s because his resulted in a few long

trips, whereas Wife’s required a road trip 10 or 11 months per year. Despite claiming he

hated the term, Husband referred to an arrangement known as the “Disneyland dad

schedule” in which more time with the non-custodial parent was scheduled during summer

vacation and other breaks. He stated this would make more sense for their situation as it

would permit fewer drives and permit him to take visits to Mt. Juliet if he had the funds.

When asked about his reasons for not moving back to the Mt. Juliet area, Husband

responded that he would not move back because Wife had abandoned the marriage and he

did not want to move back without a job and get the children’s hopes up because he would

leave again if offered a good job. He further stated that visitation in Mt. Juliet would be

inconvenient for him as he had to stay in a hotel because his parents’ and sister’s homes

were too crowded with people and animals. Additionally, Husband explained that he does

not have a relationship with his brother and his brother’s wife is Wife’s best friend.

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Therefore, it would be unsuitable for him to exercise parenting time at their home which

was also located in the Mt. Juliet area.

Husband next discussed the property division. He explained that he wanted the

divorce finalized because it had required him to cover the expenses for two households and

held him “back from moving [his] career forward” as he could not obtain “financing, like

an SBA loan through this, unless this is settled.” He further stated that he believed a 50/50

division would be fair especially given his student loan situation, and he wanted the student

loans weighed as a factor in the trial court’s decision. Husband also indicated that he

believed the marital residence needed to be sold to remove the debt from his record for

financing purposes as well as providing him with some capital to be used in his pursuit of

a business transaction. He indicated that the home had been purchased partially as an

investment and that he needed to leverage the equity in the home. He was also concerned

that the number of new homes being built in the area would hurt the home’s value. He

later explained that the sale of the home would provide both parties with up to $250,000

worth of tax-free income.

Husband also discussed some of the tax consequences incurred as a result of his

income and the distributions from the retirement accounts taken in 2023. Approximately

$121,338 of Husband’s 2023 gross income of $162,686 was attributable to distributions

taken from the couple’s Roth IRA and traditional IRA accounts. Husband submitted

several IRS publications as exhibits, demonstrating that there is a 10% penalty associated

with taking early distributions from a Roth IRA or traditional IRA. He also stated that he

was not eligible for any of the exceptions and asked that he be awarded the tax credits

associated with the children for the year.

Direct examination concluded with Husband again explaining the “cycle” of his

work acquiring companies. He stated the process typically takes an average of two years

but noted that “[o]nly 60 percent do it within that time frame.” He also represented that

his arrangement with the travel blogger was picking up steam and that he was interviewing

at a venture capital firm where if hired he would earn between $4,000 and $5,000 per

month. He then explained that he had been attempting to close a transaction his entire

career and explained that if he was successful, “I may get, say, 10 million dollars out of it.

So why -- why would I risk not doing that because of a pending divorce? This would be

chump change to settle if I actually got to that point.” Husband then reaffirmed his opinion

that the house needed to be sold so he could pursue a transaction.

On cross-examination, Husband reiterated that he is searching for the opportunity

to purchase a company with investors, run, and sell it at a profit, but acknowledged this

work does not earn much if anything in low years despite it being his primary activity. He

stated that he lived off credit cards in those low years in addition to savings, but asserted

he did not live off retirement funds until 2023. At this point, Husband was asked whether

he had actually closed on a transaction in accordance with this plan. Husband

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acknowledged that he had not but maintained he had generated an income in the past which

most people would deem successful. Husband was also asked about his attempts to find

employment. Husband had previously submitted a list of the jobs he had applied to, but

when asked about the percentage of those jobs which were executive types of positions, he

was unhelpful in determining the percentage. Husband noted, “that’s only half my journal”

and when asked whether it was what he submitted to the court, stated, “I don’t recall. My

attorney can answer that.” Husband was asked about several specific companies and

whether he had applied to them, to which he only responded, “I don’t recall.” Husband

was also asked about how he went about obtaining the job with Bulldog Adjusters. He

stated that he did call the company after leaving the May 4 hearing but asserted it took

more than just the phone call to obtain the job, as it was based on his previously established

relationship with Ash shareholders who owned Bulldog Adjusters.

The parties both offered closing statements, and Wife’s counsel stated that if

awarded the marital home, she would be willing to refinance but asked for a year from the

date of the divorce to do so. There was also some discussion between the trial court and

the parties as to whether they would prefer the order be entered prior to the end of 2023, as

waiting until 2024 could have some potential tax benefits to the parties as they would be

permitted to file as married. The trial court stated that the parties would be permitted to

speak to CPAs regarding the situation. This concluded the trial.

Husband filed a motion to ascertain the status of the case on February 22, 2024, and

while the motion included a notice of hearing for February 29, 2024, it is unclear whether

that hearing took place. Subsequently, both parties submitted affidavits regarding the

attorney’s fees accumulated throughout the life of the case. Wife’s affidavit contained a

breakdown of the rates and hours charged, and listed fees in the amount of $43,407.50 for

charges dating to the beginning of the proceedings in July 2020. In the “amount paid”

portion of the document, the value listed was $0.00.

On March 8, 2024, the trial court sent the parties its findings of facts and conclusions

of law. The trial court entered the final decree of divorce incorporating those rulings and

findings on April 10, 2024. The trial court made several findings of fact regarding

Husband’s behavior during the divorce proceedings. First, the trial court found that

Husband moved to Baton Rouge “for his paramour” rather than for employment

opportunities. Additionally, the trial court found that Wife “clearly has a financial need

and is the financially disadvantaged spouse.” The trial court also found Husband to be

willfully unemployed based on him having been out of work for three years despite his

high earning capacity. The trial court explained this finding, stating that, “Husband wants

to claim that he is hunting for the right opportunity to buy and sell companies, all the while

depleting the family’s assets paying for daily needs.” The trial court acknowledged that

Husband had experienced success trading stocks but that it was not a steady source of

income. The trial court also acknowledged Husband’s goal of buying, building, and selling

a company at a large profit but noted “those opportunities do not come around often as

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evidenced by Husband’s work history.” The trial court also found that Husband had been

willfully unemployed “at different times during the marriage.” The trial court noted “that

a person with [Husband’s] education, employment history, success, and earning ability

should have no difficulty finding gainful employment, but Husband ha[d] chosen not to

work because exactly what he wanted was not readily available.” The trial court stated

that, “Husband believed he deserved a top job, and not just a good job that would allow

him to support his family and not deplete marital assets.” However, the trial court also

found that Husband’s depletion of assets did not constitute dissipation.

Next, the trial court went through its findings for the imputation of income to

Husband for child support purposes. The trial court stated that “Husband’s income [was]

not easily discernible” and listed several considerations. The trial court stated that Husband

earned $1,657,071.90 over the first 14 years of the marriage but expressed concern that this

average “include[d] years of zero (0) income and what the [trial court] [would] classify as

nominal income when Husband was out of work.” The trial court stated that “[i]t would

be unfair and inequitable to consider the years Husband was choosing not to work in

determining Husband’s actual earning ability, especially in light of the fact that Husband

testified that each time he left one of his high-paying jobs, he was either terminated or he

quit to avoid being terminated.” The trial court then compared Wife’s request that

Husband’s income be imputed at $314,892 per year to Husband’s request it be imputed at

an average of his previous five years of earnings and determined neither of these amounts

to be appropriate. Rather, the trial court determined that his income should be imputed at

$252,850.50 per year, which represented an “average of the last two (2) years (2019 and

2020) that Husband was actually gainfully employed.” The trial court imputed this amount

“for child support purposes” and imputed Wife’s income based on a lack of reliable

evidence in accordance with the child support guidelines at $35,936.00 per year.

Additionally, the trial court adopted Wife’s proposed permanent parenting plan,

which named her as the primary residential parent, assigned her 267 parenting days and

Husband 98 parenting days, and adopted a visitation schedule which required Husband to

travel to Nashville to exercise some of his parenting time. This schedule also featured

frequent periods of parenting time for Husband as there was a period of visitation in 10 of

12 months. Notably, the trial court noted that Husband’s “choice to move from Ohio to

Baton Rouge, LA, instead of returning to Middle Tennessee once the Ohio job ended, [was]

a significant factor for the Court, as it demonstrate[d] [Husband’s] priorities.” Based on

these figures, the trial court awarded Wife child support in the amount of $2,177.00 per

month.

The trial court also adopted Wife’s proposed property division and found that it was

fair and equitable pursuant to the statutory factors enumerated in Tennessee Code

Annotated section 36-4-121. The trial court went through each of those factors

individually. Wife was awarded the marital residence which was to “be divested out of

Husband and vested into Wife.” The majority of the bank and investment accounts were

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awarded to Husband, and a majority of the parties’ debts were likewise assigned to him.

The trial court also considered Husband’s student loan situation, stating that, “Husband

shall be solely responsible for any and all student loans owed to Navient and shall hold

Wife harmless from any and all liability therefrom.” The trial court also noted the tax

consequences of the parties’ situation, stating, “[t]he parties have accumulated significant

capital gains due to the sale of stocks to keep the family afloat. Otherwise, the division of

the marital estate does not have significant tax implications to either party.” Additionally,

when assessing the economic circumstances of the parties, the trial court found the

circumstances were “not great at the time of the division of the marital estate due to

Husband’s decision to remain unemployed.” The trial court went on to state that, “[i]t

appear[ed] to the Court this unemployment choice by Husband ha[d] been some kind of

strategy to gain an advantage in the divorce proceedings.” The trial court noted that had

he been earning income he was capable of earning during the pendency of the divorce,

there would be a much larger marital estate to divide.

The trial court next discussed its award of alimony to Wife. The trial court went

through the factors to be considered in making a spousal support award outlined in

Tennessee Code Annotated section 36-5-121(e)(1). The trial court again noted that Wife

was the financially disadvantaged spouse and found it would “be difficult and undesirable

for Wife to seek full-time employment outside the home because the parties’ children are

both still minors and Wife is and will be the Primary Custodian of the children seventy-

three percent of the time with the Court’s adopted Permanent Parenting Plan.” The trial

court also cited the fact that Wife would continue to homeschool the children in making its

determination. The trial court awarded Wife rehabilitative alimony in the amount of

$3,000.00 per month for 36 months and then a reduced amount of $2,000 per month for

the following 60 months. The trial court also awarded Wife alimony in futuro in the

amount of $1,500 per month, which was to commence upon the expiration of the

rehabilitative alimony award. Finally, the trial court awarded Wife a judgment against

Husband in the amount of $43,407.40 to cover the attorney’s fees and costs incurred by

Wife in this matter.3 This number accounted for the balance of the fees accumulated since

the proceedings began in July 2020. Husband filed this appeal.

II. Issues Presented

Husband has presented the following issues on appeal which we have slightly

reframed:

1. Whether the trial court made sufficient findings of fact pursuant to

Tennessee Rule of Civil Procedure 52.01 when it determined Wife was

3

While the order stated it awarded both fees and costs, the trial court’s numerical award appears to

only contemplate the $43,407.50 in fees accrued, as it does not account for the $1,127.60 worth of expenses

listed in the affidavit.

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entitled to an award of alimony in futuro and whether the trial court

awarded excessive alimony in futuro and rehabilitative alimony.

2. Whether the trial court abused its discretion in dividing the marital estate

by failing to set a timeframe for the sale or refinancing of the marital

residence or by not properly considering Husband’s student loan debt

when dividing the marital property.

3. Whether the trial court abused its discretion in requiring Husband to

travel from Baton Rouge to Nashville to exercise portions of his parenting

time.

4. Whether the trial court abused its discretion by finding Husband willfully

underemployed in calculating his income for child support purposes.

5. Whether the trial court abused its discretion by awarding attorney’s fees

to Wife.

In addition to answering Husband’s issues, Wife presents the following issue on appeal:

1. Whether Wife is entitled to an award of attorney’s fees on appeal.

For the following reasons, we affirm in part and vacate in part the judgment of the trial

court.

III. Discussion

Before assessing the issues presented above, we note that the review of certain

issues in a divorce proceeding can affect the consideration of others. As we have

previously explained:

The dissolution of a marriage requires the courts to engage in the orderly

disentanglement of the parties’ personal and financial affairs. Many of the

issues that must be addressed during this process are interrelated, and the

disposition of earlier issues directly influence the decision on later issues.

Accordingly, the parties and the courts should pay careful attention to the

order in which the various issues in a divorce case are addressed and decided.

As a general rule, the first issue considered in a divorce case concerns

whether either or both parties have demonstrated that they are entitled to a

divorce. Thus, at the outset, trial courts should first determine to whom the

divorce should be awarded or whether the parties should be declared

divorced in accordance with Tenn. Code Ann. § 36-4-129 (1996). Following

this decision, trial courts should turn their attention to the custody and

visitation arrangements for the children if the parties have minor children

entitled to support. Only after these status issues have been decided should

trial courts turn their attention to the financial aspects of the divorce decree.

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The trial court’s first task following the resolution of the status issues is to

identify and distribute the parties’ separate property and then to divide their

marital property in an equitable manner. As part of this process, the trial court

should also identify and allocate the parties’ separate and marital debts.

Sorting out the parties’ property interests must precede support decisions

because the manner in which the separate and marital property is divided can

affect later support decisions.

After the parties’ property interests have been addressed, trial courts should

then turn their attention to child support. This is precisely what this court

directed the trial court to do in its first opinion in this case. Child support

decisions should precede decisions about spousal support because a spouse’s

ability to pay spousal support may be directly and significantly influenced

by the amount of child support he or she has been ordered to pay.

Consideration of spousal support questions should follow the disposition of

all the preceding questions. Once a court has determined whether spousal

support should be awarded, and if so its nature, amount, and duration, it

should, as a final matter, address any request for attorney’s fees if such

request has been made.

Anderton v. Anderton, 988 S.W.2d 675, 679 (Tenn. Ct. App. 1998) (internal citations

omitted) see Durunna v. Durunna, No. M2022-00415-COA-R3-CV, 2024 WL 1448142,

at *1-2 (Tenn. Ct. App. Apr. 4, 2024). Accordingly, we do not address Husband’s issues

in the same order in which he has listed them. Rather, as no issue has been raised regarding

the trial court’s declaration of divorce, we begin our review with Husband’s issue

concerning the visitation arrangements for the children.

A. Visitation Schedule

Husband complains that the trial court abused its discretion when it required him to

travel from Baton Rouge to Mt. Juliet to exercise parenting time. Husband sought a

parenting plan in which the children would travel to Baton Rouge at less regular intervals

but for longer periods of time and had him exercise less parenting time in Mt. Juliet. He

claims that the “rejection of [his] reasonable request is contrary to the weight of the

evidence and results in an illogical conclusion” constituting an abuse of discretion. While

somewhat unclear from the brief, it appears that Husband asks the parenting plan to be

amended to reflect the parenting schedule put forward in his proposed plan.

When a trial court is required “to make a custody determination regarding a minor

child, the determination shall be made on the basis of the best interest of the child.” Tenn.

Code Ann. § 36-6-106(a) (2016). “In taking into account the child’s best interest, the court

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shall order a custody arrangement that permits both parents to enjoy the maximum

participation possible in the life of the child consistent with the factors set out in []

subsection (a), the location of the residences of the parents, the child’s need for stability

and all other relevant factors.” Id.4 As we have previously explained, “[t]rial courts are

afforded ‘broad discretion to fashion custody and visitation arrangements that best suit the

unique circumstances of each case, and the appellate courts are reluctant to second-guess

a trial court’s determination regarding custody and visitation.’” Mejia v. Leone, No.

M2024-00303-COA-R3-CV, 2025 WL 926632, at *3 (Tenn. Ct. App. Mar. 25, 2025)

(quoting Grissom v. Grissom, 586 S.W.3d 387, 391 (Tenn. Ct. App. 2019)). Further, a trial

court’s determination regarding “custody and visitation ‘will not ordinarily be reversed

absent some abuse of that discretion.’” Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429

(Tenn. 1988)). As explained supra, “‘[a]n 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.’” Mayfield v. Mayfield, 395 S.W.3d 108, 114-115 (Tenn. 2012)

(quoting Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)).

Again, Husband presents no case law to support his argument, but instead relies on

an assessment of the best interest factors applicable to child custody determinations in

Tennessee. Tenn. Code Ann. § 36-6-106(a)(1)-(15) (2016). Husband relies on the “any

other factor” provision contained in Tennessee Code Annotated section 36-6-106(a)(15)

(2016). Husband claims his plan was more reasonable than the one adopted by the trial

court because it relieves him “of the burden imposed” by the road-trips to Nashville,

permits him to exercise parenting time in his home rather than a hotel or another person’s

residence, and is consistent with the trial court’s expectation he should be working a full-

time executive job.

While we are cognizant of Husband’s dissatisfaction with the adopted plan, he has

not demonstrated that an abuse of discretion has occurred. In its final order, the trial court

went through each of the factors listed in the statute. If a factor weighed on the analysis,

the trial court explained how it was weighed, and if it did not, the trial court placed an

“N/A” next to the factor, indicating as much. Additionally, the trial court found that the

plan was in the children’s best interest “as it allows the parents to maximize the time with

the children considering their respective residences pursuant to the mandate in Tenn. Code

Ann. § 36-6-106.” Wife testified regarding the negative impacts the trip had on her and

the children, as well as the monetary expense tied to staying in a hotel room to break up

4

The divorce action was filed in 2020 but did not proceed to trial until 2023. During that time,

what is now factor (15) was added which permits consideration of “[w]hether a parent has failed to pay

court-ordered child support.” Tenn. Code Ann. § 36-6-106(a)(15). The trial court listed this factor in the

final order as the sixteenth factor in its analysis, but in the explanatory portion only put “N/A.” It is unclear

whether it determined the factor was inapplicable due to its adoption after the case began or because there

had been no failure to pay court ordered child support. Regardless, any error which may have resulted from

consideration of this additional factor was harmless as it was not given any weight in the analysis.

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the trip. This evidence supports the trial court’s decision to require fewer trips, as well as

easing the burden on Wife by requiring Husband to carry the children to Baton Rouge for

extended visitation after he has been visiting for a birthday and by requiring him to bring

the children home at Christmas.

Perhaps most telling was the trial court’s assessment of factor (15). The trial court

stated that Husband’s choice to move to Baton Rouge rather than Middle Tennessee after

he lost his job in Ohio was “a significant factor for the Court, as it demonstrate[d]

[Husband’s] priorities.” Clearly, the trial court considered the testimony pertaining to

Husband’s move to Baton Rouge and determined his motives were not in the best interests

of the children. Accordingly, the trial court adopted a plan that would be less disruptive to

the children as they would spend more time in the Mt. Juliet area and placed more of the

onus of travel on Husband. While Husband is clearly unhappy with this decision, he has

not pointed to any portion of this analysis and explained how it was against the weight of

the evidence.

Nor has Husband demonstrated that the analysis resulted in an illogical conclusion.

The schedule does not require that he travel to Mt. Juliet every time he is to exercise

parenting time. Rather, it requires him to travel to Mt. Juliet for two five-day increments

surrounding the Martin Luther King Jr. Day and Easter holidays, one additional five-day

increment for the parties’ son’s birthday, and one four-day increment leading up to the

parties’ daughter’s birthday at the end of which he is to transport the children back to

Louisiana for a longer period of visitation. Additionally, he is required to bring the children

to Mt. Juliet at the conclusion of the Christmas break spent in Louisiana and to spend the

evening of December 23rd with them in Mt. Juliet. This would account for approximately

20 of Father’s 98 days and results in him taking five road trips to Mt. Juliet. Nothing

appears to be illogical about this arrangement. It permits the children to see both parents

for the celebration of various holidays and their birthdays which is in accordance with the

General Assembly’s instruction that a parenting arrangement shall be determined which

“permits both parents to enjoy the maximum participation possible in the life of the child

consistent with the factors set out in this subsection.” Tenn. Code Ann. § 36-6-106(a). The

plan also permits the children to see Husband in 10 of 12 months each year. At trial, though

loathe to do so, Husband referenced his wish to be a “Disneyland Dad” in that he wanted

long stretches of parenting time rather than visits spread out amongst 10 of 12 months in a

year. However, he has not shown that this arrangement would better serve the children’s

best interest or that its rejection was illogical, unreasonable, or otherwise some abuse of

discretion. Finding no abuse of discretion, we affirm the visitation schedule ordered by the

trial court.

B. Property Division

Next, Husband asserts that the trial court erred in its division of the marital estate in

the following ways: (1) it ignored his student loan obligations, (2) it did not properly

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consider the tax consequences of the retirement distributions taken prior to the trial, and

(3) it failed to properly assign and dispose of the mortgage associated with the marital

home. To cure these ills, Husband requests that he be awarded $40,000 of the equity in the

marital residence and Wife be ordered to either sell the residence or refinance the mortgage

into her name within 90 days.

“When dividing property in a divorce, the trial court must first classify property as

marital or separate[.]” Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001). Once

property has been categorized as marital or separate, “the court should place a reasonable

value on property that is subject to division.” Luplow v. Luplow, 450 S.W.3d 105, 109

(Tenn. Ct. App. 2014) (citing Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV,

2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003)). Next, “the trial court is to

divide the marital property in an equitable manner.” Id. (citing Tenn. Code Ann. § 36-4-

121(a)(1); Miller, 81 S.W.3d at 775). “The equitable division of marital property is a fact-

intensive inquiry involving the careful weighing of the relevant statutory factors.” Brainerd

v. Brainerd, No. M2015-00362-COA-R3-CV, 2016 WL 6996365, at *5 (Tenn. Ct. App.

Nov. 30, 2016). Notably, “marital debts are subject to equitable division in the same

manner as marital property.” Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003). “The

trial court has broad discretion in fashioning an equitable distribution of marital property,

and an appellate court will defer to the trial court’s distribution unless it is inconsistent with

the statutory factors or lacks proper evidentiary support.” Trezevant v. Trezevant, 568

S.W.3d 595, 607 (Tenn. Ct. App. 2018) (citing Baggett v. Baggett, 422 S.W.3d 537, 543

(Tenn. Ct. App. 2013)).

We have previously explained that “[a] division of marital property is not rendered

inequitable simply because it is not precisely equal.” Altman v. Altman, 181 S.W.3d 676,

683 (Tenn. Ct. App. 2005) (citing Roberston v. Robertson, 76 S.W.3d 337, 341 (Tenn.

2002); Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996)). Further, “[o]n appeal, it is

not our role to tweak the manner in which a trial court has divided the marital property.”

Marciante v. Perry, No. M2006-02654-COA-R3-CV, 2008 WL 820502, at *10 (Tenn. Ct.

App. Mar. 26, 2008) (citing Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007)).

“‘Rather, our role is to determine whether the trial court applied the correct legal standards,

whether the manner in which the trial court weighed the factors in Tenn. Code Ann. § 36-

4-121(c) is consistent with logic and reason, and whether the trial court’s division of the

marital property is equitable.’” Id. (quoting Owens, 241 S.W.3d at 490).

We would note that there is no dispute as to the classification or value of the property

making up the marital estate. Rather, Husband only argues the division was inequitable

pursuant to the factors outlined in Tennessee Code Annotated section 36-4-121(c).

1. Student Loan Obligations

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Husband claims that the trial court abused its discretion by not considering his

student loan obligations. Importantly, Husband agrees that his loans are properly classified

as his separate debt as they were incurred prior to the marriage. Nevertheless, Husband

claims that his decisions during the life of the marriage to invest and to pay marital debt

during his high earning years instead of his personal student loan debts should net him a

higher distribution of the marital estate than that which he was awarded.

Husband has not cited any caselaw supporting this claim but does assert the loans

should be considered as weighing on his economic circumstances, and as a factor necessary

for an equitable distribution pursuant to Tennessee Code Annotated section 36-4-121(c)(8)

and (12). The trial court’s consideration of the equitable factors does touch on the existence

of the student loans. The trial court considered them in contemplation of factor (2) as a

financial liability of a party. Specifically, the trial court stated that the student loans and

marital debts were “not greater than Husband’s earning capacity.” As to the factor (8)

raised by Husband, the trial court stated that the economic circumstances of the parties at

the time of division were “not great” but attributed this to “Husband’s decision to remain

unemployed” rather than to the parties’ debts.

Clearly the trial court was cognizant of Husband’s student loan obligations when

dividing the marital estate. Further, the trial court made findings as to the effect the parties’

debts, including the student loans would have on its division of the property. Obviously,

Husband wanted the loans considered in his favor, but he has not demonstrated how the

trial court’s treatment of his student loans was illogical, unreasonable, or otherwise an

abuse of discretion.

2. Tax Bill and IRA Penalties Associated with 2023 Income

Husband next contends that the trial court did not properly consider the income tax

and penalties he would owe for the 2023 tax year when formulating the property division.

Again, Husband has not provided us with case law to assess previous treatment of this type

of argument but rather asserts the tax bill should be considered pursuant to factors outlined

in Tennessee Code Annotated section 36-4-121(c). We have previously opined that tax

consequences are to be considered in making an equitable distribution of marital property.

Fulbright v. Fulbright, 64 S.W.3d 359, 366 (Tenn. Ct. App. 2001) (citing Tenn. Code Ann.

section 36-4-121(c)). Husband’s claim is predicated on his own projections of the tax

liability, which he provided at trial and estimated would total approximately $43,154.81

based on his total income of $162,686. He noted that this liability included 10% penalties

associated with early distributions taken from the parties’ IRAs. Husband provided the

following chart to demonstrate how he projected his tax bill:5

5

Husband’s projections are based on his income only and do not include any income Wife may

have earned from her part-time employment.

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A C D E F G H

Income brackets Tax Rate Income 2023 Taxes

$ $ 11,000 10.00% $ 11,000 $ 1,100.00

$ 11,000 44,725 12.00% $ 44,725 $ 5,367.00

$ 44,725 95,775 22.00% $ 51,050 $ 11,231.00

$ 95,775 182,100 24.00% $ 55,911 $ 13,419

$ 182,100 231,250 32 00% $ - $

$ 231,250 578,100 35.00% $ - $

►$

162,686 $ 31,117 Tax

$12,133.81 Penalty (10% of IRA dist.)

2023 Income $162,686 $43,154.81 2023 Tax + Penalty

The income is derived from:

$22,684.00 in income from Ash, Smoke, and Soot, LLC

$18,664.06 in income from Bulldog Adjusters

$49,032.00 in distributions from traditional IRA

$72,306.06 in distributions from Roth IRA

$162,686 total income 2023 (including a total of $121,338 of distributions subject to 10%

penalty pursuant to 26 U.S.C.A. § 4975, I.R.C. § 4975).

The trial court acknowledged the parties’ tax situation when it analyzed the

economic circumstances of the parties pursuant to Tennessee Code Annotated section 36-

4-121(c)(9) stating, “[t]he parties have accumulated significant capital gains due to the sale

of stocks to keep the family afloat. Otherwise, the division of the marital estate does not

have significant tax implications to either party.”6 Husband points out that he has not

generated capital gains by withdrawing from the retirement accounts, but has instead

generated income. While this sentiment is correct, it does not demonstrate that the trial

court did not consider the tax situation when issuing its order, and any mischaracterization

of the tax liability as capital gains rather than regular income was harmless error. The

evidence regarding Husband’s expected bill was entered as an exhibit and the trial court

clearly had the tax situation of the parties in mind at the trial as it instructed the parties to

report whether it would be to their advantage to wait to make the divorce final after the end

of 2023, which Husband indicated would likely lessen the tax bill. Clearly, the trial court

was cognizant of the parties’ tax situation when formulating its property division.7 Having

6

The trial court instructed the parties to consider their tax situation prior to the entry of the order

to determine which filing status would be most advantageous to them. However, there is nothing further

in the record indicating which status was chosen or the actual tax bills the parties incurred for the year.

7

Further, Husband has not demonstrated that his calculations were accurate. While Husband’s

calculations do account for the marginal tax brackets used for federal income tax purposes and for the 10%

penalty associated with early distributions from IRA accounts, there is no indication that he accounted for

any income deductions or tax credits in calculating his potential tax bill. For example, it does not appear

Husband subtracted even a standard deduction from his gross income in estimating the bill. Rather his

entire gross income of $162,686 is listed in the chart. Additionally, it does not appear Husband has

accounted for the rules which apply to Roth and traditional IRA accounts, as he simply listed the full amount

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reviewed the record, there is no indication that the weight the trial court gave to the parties’

tax circumstances in forming its property division was unreasonable, illogical, or otherwise

constituted an abuse of discretion.

3. Mortgage Assignment

Husband also contends that the trial court erred by not including a provision

requiring Wife to sell or refinance the marital residence within 90 days in its final order.

He asserts this constitutes a failure to properly allocate the mortgage debt. However,

Husband acknowledges that the trial court’s award “implicitly” assigned the mortgage to

Wife. This is confirmed by the property division worksheet attached to the final order and

incorporated by reference. The worksheet places the home in Wife’s portion of the

distribution at a value of $263,423.35, which represents the difference between the fair

market value of $525,000 and the debt of $209,576.65 owed on the home and some other

fees associated with refinancing. Husband’s concern pertains to Wife not having been

required to refinance the mortgage into only her name within a certain period of time. He

claims that the mortgage remaining on his credit report will impede his ability to attain

financing for business opportunities as he would remain liable for the debt without any

right to the underlying asset.

Based on the trial court’s property division chart and the representations of the

parties, it does not appear that the trial court failed to allocate the mortgage debt. It clearly

intended for Wife to take both the equity in the home and to assume the mortgage debt

based on its calculations in the property division worksheet. However, it does appear to

have neglected to order Wife to refinance the home within a certain period of time or to

have added a hold harmless provision to ensure Husband would not be held liable for the

mortgage. During the trial, Wife stated that she would be willing to refinance the home

but requested a year within which to do so to obtain the necessary proof of income. We

have recently remanded a case to the trial court for entry of a revised order where a party

to a divorce was not ordered to refinance the marital home within a specific span of time.

See Henry v. Henry, No. M2024-00030-COA-R3-CV, 2025 WL 304573, at *10 (Tenn. Ct.

App. Jan. 27, 2025) (remanding a cause to the trial court for entry of a revised order “to

include the obligation [to refinance the marital residence]” where it had inadvertently

excluded such a requirement from the order). We find no error in the trial court’s decision

to award the home to Wife. However, we must remand this portion of the order so that it

may be revised to include language requiring Wife to refinance the home into her name

within a span of time deemed reasonable by the trial court and to add a provision holding

Husband harmless from the liability associated with the asset.

of the distributions in the income column. These factors indicate that the $43,154.81 of income tax bill

estimated by Husband was likely inaccurate.

- 24 -

For clarity, we find the trial court did not abuse its discretion in making its equitable

division of the marital property and its rulings as to that portion of the order are affirmed.

However, the failure to require Wife to refinance the mortgage into her name appears to be

an oversight similar to the one in Henry. Accordingly, we remand this cause for the order

to be revised to include language requiring her to refinance the home within a certain time

frame to be discerned by the trial court, and to include a provision holding Husband

harmless from any liability associated with the debt.

C. Child Support

Husband also raises issue with the trial court’s determination that he was willfully

unemployed and its decision to impute his income at $252,850.50 per year for child support

purposes.8 Husband acknowledges that his income should be imputed at some level but

maintains a five-year range of his earnings is appropriate, as it would encapsulate the

cyclical nature of his earnings which was common over his career.

“Generally, the most important finding in a child support proceeding is the obligor’s

income.” Eldridge v. Eldridge, 137 S.W.3d 1, 20 (Tenn. Ct. App. 2002). A parent’s

income is calculated in accordance with the provisions of the Tennessee Child Support

Guidelines. Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a). The Guidelines permit courts

to “‘impute’ income to a parent, that is, assign or attribute an income level to the parent

that may not reflect the parent’s actual gross income” in certain situations. Massey v.

Casals, 315 S.W.3d 788, 795 (Tenn. Ct. App. 2009). Imputation of income is predicated

on the proposition “that parents may not avoid their financial responsibility to their children

by unreasonably failing to exercise their earning capacity.” Id. The Guidelines provide

that, “[i]mputing additional gross income to a parent” is appropriate where “a parent has

been determined by a tribunal to be willfully underemployed or unemployed.” Tenn.

Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i)(I). In making such a determination, “[t]he

Guidelines do not presume that any parent is willfully underemployed or unemployed” but

rather the court is “to ascertain the reasons for the parent’s occupational choices, to assess

the reasonableness of these choices in light of the parent’s obligation to support his or her

child(ren), and to determine whether such choices benefit the children.” Tenn. Comp. R.

& Regs. 1240-02-04-.04(3)(a)(2)(ii). Importantly, “[a] determination of willful

underemployment or unemployment is not limited to choices motivated by an intent to

avoid or reduce the payment of child support.” 1240-02-04-.04(3)(a)(2)(ii)(I). “The

determination may be based on any intentional choice or act that adversely affects a

parent’s income.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(I). Additionally, the

Guidelines enumerate certain specific factors to be considered including the parent’s past

8

Husband’s brief actually raises issue with him being deemed “willfully underemployed.”

However, as the trial court’s ruling deemed Husband “willfully unemployed” we will address the issue in

that context.

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and present employment, education, training, and ability to work. Tenn. Comp. R. & Regs.

1240-02-04-.04(3)(a)(2)(iii)(I-II).

Generally, “[t]his court’s review of a trial court’s decision as to child support is

reviewed under an abuse of discretion standard.” White v. Miller, No. M2021-01189-

COA-R3-JV, 2023 WL 4853361, at *4 (Tenn. Ct. App. July 31, 2023). However, as we

have previously explained, “[d]etermining whether a parent is willfully and voluntarily

underemployed or unemployed are questions of fact that require careful considerations of

all the attendant circumstances.” Cain-Swope v. Swope, 523 S.W.3d 79, 91 (Tenn. Ct. App.

2016) (citing Richardson v. Spanos, 189 S.W.3d 720, 726 (Tenn. Ct. App. 2005)). Further,

“[i]n making this determination, the court must consider a parent’s past and present

employment, education, training, ability to work, and any other relevant facts.” Id. (citing

Tenn. Comp. R. & Regs. ch. 1240-02-04-.04(3)(a)(2)(iii)). We review such findings of

fact pursuant to Tennessee Rule of Appellate Procedure 13(d), which states, “review of

findings of fact by the trial court in civil actions shall be de novo upon the record of the

trial court, accompanied by a presumption of the correctness of the finding, unless the

preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). This review,

“accords substantial deference to the trial court’s decision, [ ] especially when it is premised

on the trial court’s singular ability to ascertain the credibility of the witnesses.”

Richardson, 189 S.W.3d at 726 (citing Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App.

2001); Lightfoot v. Lightfoot, No. E2001-00106-COA-R3-CV, 2001 WL 1173297, at *6

(Tenn. Ct. App. Oct. 4, 2001)). “‘For the evidence to preponderate against a trial court’s

finding of fact, it must support another finding of fact with greater convincing effect.’”

Cain-Swope, 523 S.W.3d at 91 (citing State ex rel. Flowers v. Tennessee Trucking Ass’n

Self Ins. Grp. Tr., 209 S.W.3d 595, 598-99 (Tenn. Ct. App. 2006)).

The trial court determined Husband was willfully unemployed at the time of trial

and that he had been “at different times during the marriage.” The trial court noted that

“Husband has a history of earning very high incomes over a short period and then being

unemployed for periods of time” during which “the family would live off of his high

earnings, savings, investments, and credit cards.” Consistent with this finding, the trial

court stated that it would be unfair to Wife to consider years in which Husband earned zero

income or nominal income. The trial court also considered the parties’ requests, noting

that Husband requested that his income be based on an average of his previous five years

of earnings, including several of his low-earning years, for an average of $116,353.20 per

year. Conversely, Wife submitted his income should be set at $314,892. The trial court

determined that neither suggestion would be “fair under the circumstances.” Instead, the

trial court took an average of Husband’s income for the years 2019 and 2020 which it

deemed to be the last years in which Husband was “gainfully employed.” Husband’s

average income in those two years was $252,850.50 per year which the trial court set as

Husband’s income for child support purposes.

- 26 -

Husband contends that the trial court erred because the evidence demonstrated that

he had a “pattern of high-income years followed by periods of lower or no income” and

this pattern “was consistent throughout the marriage.” Husband asserts that a review of his

employment history demonstrates that periods of lower income were not by choice but

merely a feature of his occupation. He also points to his testimony and other evidence

demonstrating that he dedicated large amounts of time and effort to searching for a new

high earning position in addition to a transaction to facilitate. Additionally, he claims that

he has “actively pursued multiple CEO and executive-level positions, [by] submitting

numerous job applications through platforms like LinkedIn and Indeed,” and “[h]is

continued search for employment and his efforts to generate income demonstrate that he

was not willfully avoiding work.” He again asserts that averaging of his income for the

past five years is an appropriate method of calculating the income to impute to him.9

The trial court supported its determination with an assessment of several of the facts

and circumstances surrounding the case. First, the trial court noted that Husband’s work

history demonstrated that he would earn very high incomes over certain periods of time,

but then would follow these with periods of unemployment, during which the family would

survive on savings, investments, credit cards, and his high earnings. The trial court also

noted Husband’s range of income spanned from $411,638 in 2016 to $0 in 2018 and that

he was unemployed at the time of the trial. The trial court also considered Husband’s desire

to facilitate a business acquisition, noting the rarity in such a deal working out, but

determined Husband was not justified in choosing not to work simply “because exactly

what he wanted was not readily available.” Thus, it appears the trial court deemed

Husband’s decisions to search for a new transaction or to engage in activities which did

not provide income during the pendency of the divorce to be unreasonable. The trial court

also acknowledged Husband’s “education, employment history, success, and earning

ability” and juxtaposed these circumstances with Husband’s inability to find gainful

employment throughout the three years the divorce was pending. The record supports these

findings.

Husband holds both an undergraduate degree and an M.B.A. Additionally, Husband

has experience working in large business ventures and an impressive resume. He is still

relatively young, and nothing in the record indicates that he is presently unable to work.

Husband has also hired a former soap opera star as a coach to aid in “packaging” what he

does so he “can communicate it.” Husband is also consulting on a potential television

program. It is unclear why he is not currently being paid for that work, but he could spend

9

We would note that Husband argues that his income should be set at an amount higher than he

was earning at the time of trial. Thus, he has essentially conceded a basis existed for imputing income to

him based on his earning capacity. See Schanel v. Richardson, No. M2022-00800-COA-R3-CV, 2023 WL

6334194, at *26 (Tenn. Ct. App. Sept. 29, 2023) (stating a mother could not “complain that the trial court

erred in finding her to be voluntarily underemployed” on appeal where she requested the trial court impute

a level of income to her which was higher than that which she actually earned and thus conceded a basis

existed for a finding of voluntary underemployment).

- 27 -

that time generating some amount of income. As to Husband’s contention that he has filed

numerous online applications searching for jobs, the record supports the trial court’s

decision to give little weight to this claim. At trial, Husband testified that those types of

applications were largely ineffective and “as disgusting as online dating.” Further, when

asked about many of the positions for which he applied, he would not discuss the individual

positions or provide additional information about the types of jobs for which he was

applying. These facts support a decision to give less weight to Husband’s claims regarding

his job search. Additionally, while both parties agreed that Husband’s income was cyclical,

they characterized the reason for this differently. As noted above, Husband claimed he has

worked diligently during these times to find a new lucrative job and/or a transaction to

facilitate. Meanwhile, Wife described this cycle as, “[h]e would make money, he would

either quit or get fired, and we would live off of savings and kind of coast, like, until push

[came] to shove, then he’d get a job.”

The trial court was clearly unconvinced by Husband’s explanations for his

unemployment throughout the divorce proceedings and found Wife’s description of the

situation to be more credible. Strikingly, in another portion of the order, the trial court

went so far as to state that it appeared Husband’s unemployment during the proceedings

“ha[d] been some kind of strategy to gain an advantage in the divorce proceedings.” We

have previously given credence to a trial court’s credibility findings as support for a finding

of voluntary underemployment or unemployment. See Cox v. Cox, No. M2024-00827-

COA-R3-CV, 2025 WL 1517810, at *11 (Tenn. Ct. App. May 28, 2025) (affirming the

imputation of income to a party where the trial court determined “Father’s testimony

concerning his travel, his purported job search, and his actual earning capacity to not be

credible.”); Demers v. Demers, 149 S.W.3d 61, 72 (Tenn. Ct. App. 2003) (finding a trial

court did not err where it determined a father’s testimony that he did not have the income

necessary for child support after the auction of his business was not credible where his

siblings began operating the business with no experience out of a building the father owned

for no rent and based on the father’s lifestyle remaining the same). In our view, the

evidence contained in the record does not preponderate against the trial court’s finding that

Husband was willfully unemployed.

Having determined that the trial court did not err in finding Husband to be willfully

unemployed, we now turn to Husband’s claim the trial court imputed too much income to

him. The Child Support Guidelines provide:

Once a parent has been found to be willfully underemployed or unemployed,

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. The additional income allocated to the parent shall be

determined using the following criteria:

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I. The parent’s past and present employment; and

II. The parent’s education and training.

Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(II). A determination of willfully

underemployed or unemployed parent’s potential income is a question “of fact that

require[s] careful consideration of all the attendant circumstances.” Richardson, 189

S.W.3d at 726. “Generally, an award of child support should be set based upon the obligor

parent’s ‘most recent, actual income.’” Robeson v. Robeson, No. M2023-01449-COA-R3-

CV, 2025 WL 368233, at *7 (Tenn. Ct. App. Feb. 3, 2025) (quoting Smith v. Smith, No.

M2000-01094-COA-R3-CV, 2001 WL 459108, at *4-5 (Tenn. Ct. App. May 2, 2001)).

However, “[w]hen averaging variable income, ‘[t]he time period to be used lies within the

discretion of the trial court based upon the facts of the situation.’” Id. (quoting State ex rel.

Moss v. Moss, No. M2013-00393-COA-R3-CV, 2014 WL 1998738, at *3 (Tenn. Ct. App.

Apr. 24, 2014)). This type of discretionary decision is reviewed under the abuse of

discretion standard. Id.

The trial court calculated the income to impute to Husband by taking an “average

of the last two (2) years (2019 and 2020) that Husband was actually gainfully employed”

which resulted in an average of $252,850.50 per year. The trial court considered the

amounts of imputed income requested by both Husband and Wife but determined that

neither number would be fair, noting Husband’s figure included years in which he

generated either no income or nominal income.

Below and on appeal, Husband contends that an average of his previous five years

of earnings would be appropriate in this case. Husband’s income tax returns were

submitted as an exhibit and set out his income for the years 2008-2022. An average of

Husband’s last five years of income would result in an average income of $116,353.20

which he asserts fairly accounts for both his years of earning high income and the low

earning years which are necessary to generate the high years. Conversely, Wife avers the

evidence supports the trial court’s decision to impute income of $252,850.50 to Husband.

The trial court relied on several considerations when imputing income to Husband.

The trial court noted Husband’s history of earnings, as well as his education, employment

history, success, and future earning potential when it determined he was willfully

unemployed. Each of these considerations are supported by the evidence contained in the

record. Husband has both a bachelor’s degree and an M.B.A. Likewise, Husband has been

the CEO of multiple companies throughout his career and has enjoyed several years of high

income. Similarly, Husband’s prior earnings indicate his ability to earn at high levels, with

him having earned $381,785 in 2020, $411,638 in 2016, and $342,229 in 2015. Further,

there is precedent for imputing a high level of income, as our State Supreme Court has

similarly imputed a high amount of income to a parent with a history of high earnings,

despite recent years of low earnings. See Brooks v. Brooks, 992 S.W.2d 403, 407 (Tenn.

1999) (imputing income to the father at $102,087 per year based on his history as a college

- 29 -

graduate and successful business proprietor and land speculator despite his most recent

year of adjusted gross income of $25,888).

Likewise, the trial court explained its reasoning as to why it excluded the years of

income requested by Husband in its average. The trial court characterized the incomes

earned in those years as “nominal” and as non-representative of what Husband had the

capability of earning. The trial court also stated it found Husband’s lack of employment

over the three years the divorce was pending to have been part of some strategy to gain an

advantage in the divorce proceedings. While Husband disagrees with this decision, he has

not demonstrated the evidence preponderated against it. All in all, the trial court espoused

its reasoning for the income it imputed to Husband and that reasoning was supported by

the record and the trial court’s credibility findings. While we acknowledge that

$252,850.50 is a large sum of income, we will not substitute our judgment for that of the

trial court. Finding that an evidentiary basis existed to impute income to Husband in the

amount of $252,850.50, we affirm.

D. Alimony

Husband raises several issues regarding the trial court’s award of alimony to Wife.

“Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro, (2)

alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.” Mayfield, 395

S.W.3d at 115 (citing Tenn. Code Ann. § 36-5-121(d)(1)). 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, 395 S.W.3d at 114. 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, 350

S.W.3d at 105). “‘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. at 114-115 (quoting Gonsewski, 350 S.W.3d at 105).

Tennessee Code Annotated section 36-5-121(i) sets out the factors to be considered

by a trial court making a spousal support determination. It provides that:

(i) In determining whether the granting of an order for payment of support

and maintenance to a party is appropriate, and in determining the nature,

amount, length of term, and manner of payment, the court shall consider all

relevant factors, including:

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

of each party, including income from pension, profit sharing or retirement

plans and all other sources;

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

opportunity of each party to secure such education and training, and the

necessity of a party to secure further education and training to improve such

party’s earnings capacity to a reasonable level;

(3) The duration of the marriage;

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

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

physical disability or incapacity due to a chronic debilitating disease;

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

employment outside the home, because such party will be custodian of a

minor child of the marriage;

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

intangible;

(8) The provisions made with regard to the marital property, as defined in §

36-4-121;

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

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

contributions to the marriage as monetary and homemaker contributions, and

tangible and intangible contributions by a party to the education, training or

increased earning power of the other party;

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

deems it appropriate to do so; and

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

necessary to consider the equities between the parties.

Tenn. Code Ann. §§ 36-5-121(i)(1)-(12). In addition to these factors, “courts must consider

‘the disadvantaged spouse’s need and the obligor spouse’s ability to pay.’” Griffin v.

Griffin, No. M2019-01113-COA-R3-CV, 2020 WL 4873251, at *11 (Tenn. Ct. App. Aug.

19, 2020) (quoting Gonsewski, 350 S.W.3d at 110). “These last two factors are the most

important.” Id. (citing Gonsewski, 350 S.W.3d at 110).

Here, the trial court awarded Wife rehabilitative alimony in the amount of $3,000

per month for 36 months and thereafter $2,000 per month for 60 months. The trial court

also awarded Wife alimony in futuro to commence upon the expiration of the rehabilitative

alimony in the amount of $1,500 per month. Alimony in futuro is “a form of long-term

support” and “is appropriate when the economically disadvantaged spouse cannot achieve

self-sufficiency and economic rehabilitation is not feasible.” Mayfield, 395 S.W.3d at 115

(citing Gonsewski, 350 S.W.3d at 107). Meanwhile, “rehabilitative alimony is short-term

support that enables a disadvantaged spouse to obtain education or training and become

self-reliant following a divorce.” Id. (citing Gonsewski, 350 S.W.3d at 108). Notably, the

- 31 -

statute provides that, “[a]n award of alimony in futuro may be made, either in addition to

an award of rehabilitative alimony, where a spouse may be only partially rehabilitated, or

instead of an award of rehabilitative alimony, where rehabilitation is not feasible.” Tenn.

Code Ann. § 36-5-121(d)(4). Keeping these principles in mind, we now consider

Husband’s various arguments that the trial court erred in making its alimony

determinations.

Husband asserts that the trial court failed to make proper findings of fact in its final

order and thus the order did not comply with Tennessee Rule of Civil Procedure 52.01.

Husband also claims that the trial court “overstated” his income potential, inaccurately

inflating his ability to pay. Additionally, Husband asserts that the trial court improperly

awarded alimony in futuro to Wife because Wife is capable of rehabilitation. Wife asserts

that the trial court did not abuse its discretion when forming the alimony award and states

the trial court implicitly relied on her affidavit of income and expenses which was

submitted as an exhibit at trial.

Tennessee Rule of Civil Procedure 52.01 requires courts “to make specific findings

of facts and conclusions of law following bench trials.” Masserano v. Masserano, No.

W2018-01592-COA-R3-CV, 2019 WL 2207476, at *10 (Tenn. Ct. App. May 22, 2019)

(citing Tenn. R. Civ. P. 52.01). Generally, to determine whether a trial court has complied

with Rule 52.01 “‘the findings of fact must include as much of the subsidiary facts as is

necessary to disclose to the reviewing court the steps by which the trial court reached its

ultimate conclusion on each factual issue.’” Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn.

2013) (quoting 9C Federal Practice and Procedure § 2579, at 328)). Importantly, when

considering “an order that does not comply with Rule 52.01, this Court has indicated that

we may either review the evidence de novo or vacate the judgment and remand to the trial

court for the entry of an order compliant with Rule 52.01.” Masserano, 2019 WL 2207476,

at *10 (citing Gooding v. Gooding, 477 S.W.3d 774, 783 (Tenn. Ct. App. 2015)).

We have previously found that final orders have not complied with Rule 52.01 in

the context of alimony awards where they did not consider the disadvantaged spouse’s need

and the advantaged spouse’s ability to pay. See Griffin, 2020 WL 4873251, at *13

(vacating a trial court’s award of alimony where the trial court failed “to make sufficient

findings of fact regarding Husband’s ability to pay the amount of alimony awarded to

Wife”); Masserano, 2019 WL 2207476, at *11 (vacating a trial court’s alimony award

where the final order “contain[ed] no specific findings as to Husband’s income” and did

not “include any findings as to Wife’s reasonable expenses”); Sibley v. Sibley, No. M2015-

01795-COA-R3-CV, 2017 WL 2297652, at *5 (Tenn. Ct. App. May 25, 2017) (vacating a

trial court’s alimony award where “the Final Decree lack[ed] any discussion of Wife’s need

or Husband’s ability to pay either the rehabilitative alimony or the attorney’s fees” and

there was also no “determination that Wife had the need to be or was capable of being

rehabilitated”).

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Here, the final order does not contain a specific calculation of Wife’s need. The

trial court did appear to take the circumstances of the parties into account when making its

award as it identified Wife as the disadvantaged spouse and addressed the statutory factors

when outlining its award. However, the order does not contain a breakdown explaining

Wife’s expenses and the amount of those expenses which are offset by her monthly income

and award of child support. Thus, we are unable to discern Wife’s remaining financial

need from the order. Additionally, while the trial court’s final order does impute

Husband’s income at $252,850.50 per year “for child support purposes” it does not state

this level of income would also be used for alimony purposes. Further, the order does not

otherwise opine on the ability of Husband to pay the alimony award. While it is apparent

that the trial court believed Husband has the capacity to earn high amounts of income based

on the child support findings and the consideration of his education and work experience,

there is not a specific level of income listed for alimony purposes.

Similarly, the trial court did not make any specific findings regarding whether Wife

could be rehabilitated. See Sibley, 2017 WL 2297652, at *5. It appears the trial court may

have considered Wife to be capable of partial rehabilitation as it awarded both alimony in

futuro and rehabilitative alimony. See Tenn. Code Ann. 36-5-121(d)(4). Further, the trial

court stated that it would be undesirable for Wife to return to the workforce full time as she

would remain responsible for home schooling the children. However, there was not a

specific finding regarding the extent to which Wife could be rehabilitated despite the

presence of competing arguments from Husband and Wife regarding her future

employment prospects. Wife averred at trial that she anticipated an earning capacity of

approximately $2,000 per month and she would be able to accomplish this while still

homeschooling the children. The trial court noted this testimony in its final order but did

not make a finding instituting this level of income for alimony purposes. Conversely,

Husband claims she can make more money as a full-time real estate agent. Husband also

appears to contend that the children should be placed in public school so Wife can work

full-time.

While Wife is unlikely to reach a similar earning capacity as Husband in either

scenario, the extent to which she may be rehabilitated still bears on the amount of alimony

appropriate under the circumstances. The trial court clearly intended for her to continue

homeschooling the children which would affect the extent to which Wife could be

rehabilitated as it would likely prevent her from working full-time. Regardless, while the

concept of rehabilitation is explained in the order and an award of rehabilitative alimony

was made, there were no specific findings as to the degree to which Wife could be

rehabilitated, the amount of income she would have the capacity to earn in the future, or

the effect this would have on her need for alimony presently and in the future.

Having reviewed the trial court’s order, we agree with Husband that the findings

were inadequate to comply with Rule 52.01. There were no specific findings establishing

the amount of Wife’s need or Husband’s ability to pay an award. Nor was there a tacit

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explanation as to the extent to which Wife could be rehabilitated. As stated above, when

an order fails to comply with Rule 52.01, we are permitted to either conduct a de novo

review of the record or vacate the judgment and remand to the trial court for entry of a

compliant order. Masserano, 2019 WL 2207476, at *10. Given that several findings are

necessary beyond Wife’s need which the parties assert is ascertainable, we decline to

review the issue. Accordingly, we vacate the trial court’s alimony award and remand for

reconsideration of the amount of alimony based on Wife’s need and Husband’s ability to

pay, and for consideration of the extent to which Wife is capable of being rehabilitated.

E. Attorney’s Fees Awarded to Wife

Husband’s final issue revolves around the award of attorney’s fees to Wife. Prior

to the trial, the trial court entered two orders requiring Husband to withdraw funds from

the parties’ investment accounts to pay Wife’s attorney’s fees from the marital estate. In

its final order, the trial court awarded Wife a judgment in the amount $43,407.50 “for her

attorney’s fees and costs incurred in this matter, for which execution shall issue, if

necessary[.]” This was equal to the total amount incurred in fees listed in Wife’s affidavit

of attorney’s fees. However, the attached invoice also contained a value of $0.00 in the

“Amount Paid” section.

Husband claims that Wife’s fees were already paid out of the marital estate, and the

trial court did not properly consider Wife’s need in forming the award as Wife did not lack

funds to pay an already satisfied bill. Wife asserts that there was no error as Husband was

not being forced to pay the fees twice. She further contends that any fees which were paid

prior to the trial were paid from the marital estate and thus Husband is not being forced to

pay the same fees twice as she was viewed as having contributed to the value of the marital

estate as a homemaker.

“In a divorce case, an award of attorney’s fees is treated as an award of alimony in

solido.” Eldridge, 137 S.W.3d at 24. Accordingly, when a trial court considers “whether

to award attorney’s fees, the trial court is required to consider the same factors used when

considering a request for alimony.” Id. (citing Kincaid v. Kincaid, 912 S.W.2d 140, 144

(Tenn. Ct. App. 1995)). Thus, the trial court again must consider the need of the

disadvantaged spouse. Id. at 24-25 (citing Herrera v. Herrera, 944 S.W.2d 379, 390

(Tenn. Ct. App. 1996)). The issue of attorney’s fees in divorce proceedings is “largely left

within the discretion of the trial court and will not be disturbed on appeal unless the trial

court clearly abused that discretion.” Id. at 25 (citing Aaron v. Aaron, 909 S.W.2d 408,

411 (Tenn. 1995)).

As explained above, Tennessee Rule of Civil Procedure 52.01 requires courts “to

make specific findings of facts and conclusions of law following bench trials.” Masserano,

2019 WL 2207476, at *10 (citing Tenn. R. Civ. P. 52.01). Generally, to determine whether

a trial court has complied with Rule 52.01 “‘the findings of fact must include as much of

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the subsidiary facts as is necessary to disclose to the reviewing court the steps by which

the trial court reached its ultimate conclusion on each factual issue.’” Lovlace, 418 S.W.3d

at 35 (quoting 9C Federal Practice and Procedure § 2579, at 328)). Importantly, when

considering “an order that does not comply with Rule 52.01, this Court has indicated that

we may either review the evidence de novo or vacate the judgment and remand to the trial

court for the entry of an order compliant with Rule 52.01.” Masserano, 2019 WL 2207476,

at *10 (citing Gooding, 477 S.W.3d at 783).

The trial court determined that Wife was the disadvantaged spouse and found

Husband to be capable of earning a level of income Wife would not be able to meet.

However, as noted above, while the trial court made findings regarding Husband’s earning

ability for child support purposes, it did not do so for purposes of alimony. Considering

this, we cannot say there were specific findings for the award to comply with Rule 52.01.

As stated above, when an order fails to comply with Rule 52.01, we are permitted

to either conduct a de novo review of the record or vacate the judgment and remand to the

trial court for entry of a compliant order. Masserano, 2019 WL 2207476, at *10. Here,

there would appear to be more of a basis to conduct a review of the order based on the

specific amount of attorney’s fees which were awarded. Unfortunately, the outstanding

balance of fees owed to Wife’s attorneys is unclear. Two orders were entered by the trial

court requiring Husband to withdraw funds from the couple’s retirement accounts to pay

Wife’s attorneys: one ordering a $15,000.00 payment on October 23, 2023, and one

ordering a $18,036.00 payment on November 20, 2023. This would total $33,036.00 in

fees ordered prior to the trial. However, Wife’s attorneys submitted their total fee

calculation on March 6, 2024, which listed the total amount of fees charged over the life of

the case as $43,407.50. This document lists the amount paid on Wife’s fees as $0.00, but

it appears based on the testimony at trial that the amounts listed in the pre-trial orders had

been paid prior to trial. When subtracting the amount of fees required by the pre-trial

orders from the full amount accrued, the balance is left at $10,371.50 of outstanding fees.

There would be no apparent error in requiring Husband to pay $10,371.50 in

outstanding attorney fees, all of which accrued after the trial court entered the two pre-trial

fee orders referenced above. Wife’s attorney fee of $33,036.00 was ordered to be paid

prior to the divorce proceedings from marital funds. Therefore, Husband would owe Wife

$16,518.00 for the attorneys’ fees that have already been paid, rather than the full amount

paid. Assuming that the fees reflected in the pre-trial orders have been paid, requiring

Husband to now pay the full amount would result in him having paid $59,925.50 while the

total fees charged only amounted to $43,407.50. While it is logical for the court to

potentially hold Husband responsible for the fees, it is illogical to force him to pay

$16,518.00 in excess of the actual fees charged.

Having reviewed the trial court’s order, the findings were inadequate to comply with

Rule 52.01. There were no specific findings establishing Husband’s ability to pay an award

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and the amount of fees which have been paid out of the marital estate and those which

remain outstanding are unclear. Accordingly, we vacate the trial court’s award of attorney

fees and remand for reconsideration of the amount of attorney fees based on Wife’s need,

Husband’s ability to pay, and for a proper calculation of the attorney’s fees. Thus, we

vacate the award of attorney’s fees to Wife in the form of alimony in solido, and remand

for reconsideration in light of the findings made on its reconsideration of the award of

rehabilitative alimony and alimony in futuro, as well as consideration of the fees

outstanding and those presumed to have been paid from Husband’s portion of the marital

estate.

F. Wife’s Claim for Attorney’s Fees on Appeal

Wife’s sole claim is that she should be awarded attorney’s fees incurred on appeal

pursuant to Tennessee Code Annotated section 36-5-103(c) (2021). Wife claims that as

Husband challenged the child support order, the attorney’s fees generated on appeal were

done so on behalf of the children. She also asserts that attorney’s fees on appeal would be

appropriate “on equitable grounds” based on her inability to pay, Husband’s lack of success

on appeal, and her exhibition of good faith throughout the proceedings. Tennessee Code

Annotated section 36-5-103(c) provides:

(c) A prevailing party may recover reasonable attorney’s fees, which may be

fixed and allowed in the court’s discretion, from the non-prevailing party in

any criminal or civil contempt action or other proceeding to enforce, alter,

change, or modify any decree of alimony, child support, or provision of a

permanent parenting plan order, or in any suit or action concerning the

adjudication of the custody or change of custody of any children, both upon

the original divorce hearing and at any subsequent hearing.

Tenn. Code Ann. § 36-5-103(c) (2018). The decision to award fees on appeal based on

the operation of the statute is one which remains within the discretion of this court.

Eberbach v. Eberbach, 535 S.W.3d 467, 477 (Tenn. 2017) (stating that “when appellate

attorney’s fees are requested pursuant to statutes like [ ] section 36-5-103(c), which

expressly permit the court to exercise its discretion, the Court of Appeals should analyze

any such request by exercising its discretion to determine whether an award to the

prevailing party is appropriate”).

It has been established through this case that Wife is the disadvantaged spouse

whereas the Husband has a substantial earning capacity. Further, a portion of this appeal

was predicated on the calculation of Husband’s income for child support purposes and thus,

Wife was required to defend that portion of the appeal on the children’s behalf. However,

Husband has been successful on portions of his appeal, and there is no indication that

Husband has failed to act in good faith during the pendency of this appeal. Accordingly,

we decline to award attorney’s fees to Wife on appeal.

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IV. Conclusion

For the foregoing reasons, we vacate the trial court’s order as it pertains to the

awards of alimony in solido and rehabilitative alimony and remand so the trial court may

make adequate findings of fact pursuant to rule 52.01. We affirm the trial court’s division

of marital property but remand the order so it may be revised to include a provision

requiring the mortgage be refinanced into Wife’s name by a date to be determined by the

trial court and to include a provision for Wife to hold Husband harmless from any liability

associated with the debt. We affirm the parenting schedule adopted by the trial court.

Further, we affirm the trial court’s determination that Husband was willfully unemployed

at the time of the trial and at various times throughout the marriage and its imputation of

income to Husband. Likewise, we affirm the award of attorney’s fees made to Wife below

but must vacate the award and remand for specificity in the amount of fees awarded to

Wife to ensure Husband is not overcharged. Finally, we decline to award Wife her

attorney’s fees on appeal. Costs on appeal are assessed one-half to the appellant, Ryan

Keith Addis and one-half to the appellee, Rosalynn Victor Addis, for which execution may

issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

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