Opinion

Steven A. Holdsworth v. Wendy Alford Holdsworth

Court: Court of Appeals of Tennessee
Filed: Jun 3, 2015
Status: Published
On the bench: Judge Brandon O. Gibson
Cited by: 0 cases
Authority: More cited than 34.6%

“The character, attitude and general personality of other persons who would be in a position to influence the children are important considerations for the court.”

How later courts described this case

“The character, attitude and general personality of other persons who would be in a position to influence the children are important considerations for the court.”
stating that the money husband spent on his paramours “clearly constitutes dissipation”

Written by the judges who cited it.

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

March 10, 2015 Session

STEVEN A. HOLDSWORTH v. WENDY ALFORD HOLDSWORTH

Direct Appeal from the Circuit Court for Shelby County

No. CT-000718-11 James F. Russell, Judge

No. W2013-01948-COA-R3-CV – Filed June 3, 2015

This is an appeal from an extremely contentious divorce. The parties married in

1994 and had one child together during the marriage. Husband filed for divorce in 2011.

In July 2013, the trial court entered a final decree of divorce. Among other things, the

trial court found that Husband dissipated marital assets by writing checks to his girlfriend

totaling $15,633 and ordered Husband to reimburse Wife that amount. The trial court

also entered a permanent parenting plan that designated Wife the primary residential

parent and provided a residential parenting schedule. As part of its permanent parenting

plan and based on its calculation of the parties‟ respective incomes, the trial court set

Husband‟s child support obligation and ordered Husband to pay Wife $34,109 in

retroactive child support. Finally, the trial court awarded Wife $4,000 per month as

alimony in futuro and $461,586 as alimony in solido to reimburse Wife for her attorney‟s

fees and expenses. Husband filed a notice of appeal challenging the trial court‟s rulings.

Prior to Husband‟s appeal of the July 2013 order being heard, however, Husband

and his girlfriend were arrested when a sheriff‟s deputy discovered a marijuana plant

growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the

permanent parenting plan to impose certain restrictions on Husband‟s parenting time.

Among other things, Wife sought to condition Husband‟s parenting time on his

girlfriend‟s submission to and passing of random drug tests. In March 2014, the trial

court ruled that a material change of circumstance occurred following the entry of the

July 2013 order and entered a modified permanent parenting plan that incorporated

Wife‟s proposed restrictions. Husband filed a separate appeal from that order, and the

two cases were consolidated for appeal to this Court.

Having thoroughly reviewed issues raised by the parties and the record on appeal,

we conclude that while the trial court did not err in finding that Husband dissipated

marital assets by writing checks to his girlfriend, Wife is not entitled an award equal to

the full amount of the dissipation. We modify the amount of the dissipation award to

$7,816.53 to reflect Husband‟s one-half interest in the dissipated amounts. We affirm the

trial court‟s allocation of parenting time. While we also affirm the trial court‟s decisions

to award Wife child support and retroactive child support, we conclude that the trial court

based the amount of those awards on a determination of the parties‟ respective incomes

that is not supported by a preponderance of the evidence. Accordingly, we vacate the

trial court‟s ruling as to the amount of those awards and remand this matter for further

proceedings consistent with this opinion. Next, we reverse the trial court‟s award of

alimony in futuro. Given the facts of this case, we conclude that Wife is a candidate for

transitional alimony and direct the trial court on remand to determine the appropriate

amount and duration of such an award. While we affirm the trial court‟s decision to

modify the permanent parenting plan, we conclude that because Husband‟s girlfriend was

not a party to the proceedings, the trial court erred in setting conditions on Husband‟s

parenting time based on her compliance with provisions of the permanent parenting plan.

Finally, we conclude that the trial court did not apply a proper legal standard in awarding

Wife her attorney‟s fees and expenses and reached an illogical result. We reverse the

trial court‟s award of attorney‟s fees. We decline to award attorney‟s fees associated

with this appeal to either party.

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

part, Affirmed in part as Modified, Vacated in part, Reversed in part, and

Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, J., and KENNY ARMSTRONG, J., joined.

Amy J. Farrar, Murfreesboro, Tennessee, and Lanier Fogg, Memphis, Tennessee, for the

appellant, Steven A. Holdsworth.

George Lawrence Rice, III and Mary Louise Wagner, Memphis, Tennessee, for the

appellee, Wendy Alford Holdsworth.

OPINION

I. BACKGROUND AND PROCEDURAL HISTORY

Steven Holdsworth (“Husband”) and Wendy Alford Holdsworth (“Wife”) met

when they were both students at the University of Texas-Arlington. The parties married

in Texas in July 1994. After the marriage, they remained in Texas and continued to

pursue their education. In 1995, Wife earned a Master‟s Degree of Science in Social

Work from the University of Texas-Arlington. In 1999, Husband earned a Master of

Business Administration degree in Financial and Estate Planning from the University of

Dallas. Shortly thereafter, the parties moved to Memphis to be closer to Wife‟s parents.

After moving to Memphis, Wife got a job as a social worker with Shelby County

Schools, and Husband began working as a financial planner for Legacy Wealth

Management (“LWM”), where he remained employed through the time of trial.

In April 2005, Wife resigned from her position with Shelby County Schools to

stay home and provide care for her mother, who had been experiencing serious health

issues. In January 2007, Wife gave birth to the parties‟ only child. For the remainder of

the marriage, Wife stayed at home to care for the parties‟ daughter. In the meantime,

Husband was extremely successful in his career at LWM. By 2008, Husband rose to the

position of Managing Director and was receiving a yearly compensation that allowed the

family to live comfortably. They took several trips to Hawaii and, in 2009, purchased a

five-bedroom home in Cordova for $415,000.

In 2008, Husband met Elizabeth McFadden1 (“Ms. McFadden”) while both were

serving on the board of directors of a local trade association. Over time, the relationship

between the two transitioned from professional to personal, and in November 2009,

Husband began having an affair with Ms. McFadden. At the time, Ms. McFadden was

married and had two children of her own.

As Husband‟s relationship with Ms. McFadden became more serious, it had a

significant impact on both his personal and professional life. In January 2011, Husband

told Wife he wanted a divorce. On February 16, 2011, Husband filed a petition for

divorce on the ground of irreconcilable differences. Around the same time, Ms.

McFadden applied for a position at LWM and was hired by the company. Although

Husband served on the three-person committee that interviewed Ms. McFadden and

ultimately made the hiring decision, he opted not to disclose the extent of his personal

relationship with Ms. McFadden prior to her hire. Despite Husband‟s efforts to conceal

the romantic nature of the relationship, it did not take long for his coworkers at LWM to

learn that he was having an affair with Ms. McFadden. In March 2011, the company

forced Husband to resign from its board of directors and take a sixty-day leave of

absence. Additionally, according to the testimony of Husband and Wife at trial, the

company reduced Husband‟s annual base salary from $125,000 to $100,000.

Despite Husband‟s failure at concealing the affair from LWM, he still attempted to

conceal it from Wife by telling her that his leave of absence was voluntary and taken in

response to the recent death of his father. Not surprisingly, Wife found out about the

affair shortly thereafter and filed an answer and counter-complaint for divorce on May 6,

2011. As the divorce proceedings commenced, the parties attempted to move on with

their lives. In June 2011, Wife moved out of the parties‟ marital residence into a home

Husband‟s paramour is referred to throughout the record using several different names. We refer to her

throughout this opinion as Ms. McFadden, as that is the name the parties use in their briefs.

she rented from her parents. In October 2011, the parties sold the marital residence at a

significant loss, and Husband moved into an apartment. Husband was forced to draw

down a significant portion of his 401(k) to cover a $59,879 deficit on the sale of the

home. In an attempt to cut down on his living expenses, Husband moved in with Ms.

McFadden in a rented home in August 2012. In the meantime, the divorce proceedings

grew exceedingly contentious.

Divorce Proceedings

After the parties filed over 300 pleadings and made more than thirty court

appearances for hearings on various petitions and motions, the case was finally set for

trial beginning April 29, 2013. Prior to trial, each party submitted proposed permanent

parenting plans (“PPP”) and sworn affidavits of their respective incomes and expenses

pursuant to Local Rule 14(C).2

Wife‟s proposed PPP set forth a parenting schedule, providing that the child would

spend 288 days with Wife and 77 days with Husband. The plan also provided that until

such time as Husband and Ms. McFadden were lawfully married, Husband would not be

allowed to introduce the child to Ms. McFadden or exercise overnight visitation with the

child. Wife listed Husband‟s monthly imputed income as $15,0503 and sought $1,421

In pertinent part, Rule Fourteen of the Circuit Court for the Thirtieth Judicial District (Shelby County)

states:

(1) In all contested divorces, suits for separate maintenance, or for legal separation, each

party must file with the clerk, no later than ninety (90) days before trial, a sworn

statement setting forth the party‟s income, a list of expenses, and a description and

valuation (or estimate) of real and/or personal property possessed in any form, the state of

its title, and the party‟s claimed interest in such property. The sworn statement must also

include, if known, or if the information is reasonably procurable, the income and property

interest of the opposing party, both real and personal, and the valuation thereof. Any

changes in the statement while the case is pending must be disclosed as soon as possible,

and not later than ten (10) days before the trial.

(2) The sworn statement must also set forth separately the amount deducted from salary

for social security and income tax. Self-employed persons must estimate these sums,

using governmental guidelines or other reliable sources that are available.

(3) In all custody proceedings, the sworn statements required by T.C.A. § 36-4-106(b)(1)

must also be contained within the pleadings or in an affidavit attached to the pleading.

Wife added Husband‟s $125,000 base salary prior to his demotion in March 2011 to the average of his

annual bonuses from 2010 to 2012: ($125,000 + $55,609.03 = $180,609.03 annually or $15,050.75 per

month).

from him in monthly child support. Using similar estimations of Husband‟s monthly

income, Wife sought $34,109.25 in retroactive child support that accrued during the

pendency of the divorce proceedings. In her Rule 14 affidavit, Wife listed her monthly

income from her private practice as a licensed clinical social worker as $437. Wife listed

$8,631 in monthly expenses, which she claimed resulted in a $6,773 monthly shortfall.

The expenses included rent, utilities and home maintenance expenses, food and clothing,

and child-care expenses. Some of the expenses listed related to her business, such as

$1,500 in office rent and staffing. Wife also listed $1,788 in monthly payments on

promissory notes executed in favor of her parents for attorney‟s fees and living expenses.

To offset the deficit in her monthly budget, Wife sought an award of alimony in futuro

from Husband payable as $4,000 per month for sixty months, then $7,000 per month for

sixty months, then $8,000 per month for 300 months. Wife also submitted that she

should receive alimony in solido for her share of the parties‟ primary marital asset:

Husband‟s LWM stock, which she valued at $839,261. Wife specified that the award of

alimony in solido should be payable over approximately twenty-four years, with three

percent interest, beginning at $15,000 per year and increasing by $2,000 each year until

fully paid. Finally, Wife sought an award of alimony in solido to repay her attorney‟s

fees and living expenses incurred in connection with the divorce. Wife attached the

affidavit of her attorney listing her attorney‟s fees and expenses in the amount of

$346,683.96.

Perhaps not surprisingly, Husband‟s filings presented a drastically different picture

of the parties‟ respective incomes and expenses. Husband‟s proposed PPP also

designated Wife the primary residential parent, but set forth a parenting schedule that

provided that the child would spend 255 days with Wife and 140 days with Husband.4

Husband‟s proposed PPP did not contain any restrictions on his parenting time related to

Ms. McFadden. Husband‟s plan sought to impute monthly income of $3,500 to Wife and

provided that he would pay her $973 in monthly child support. In his Rule 14 affidavit,

Husband listed his gross monthly income from LWM as $8,343.5 Husband stated that his

net monthly pay, after tax and benefit deductions, was $5,733. Husband listed $7,823 in

monthly expenses, which he claimed resulted in a $2,090 monthly shortfall. Like Wife,

Husband listed expenses for rent, utilities, home maintenance, etc. Husband also listed

$1,438 in expenses related to the parties‟ child, including child support and $3,008 in

monthly payments for litigation expenses, credit card debt, and personal loans. Husband

agreed that the LWM stock should be classified as marital property and divided equally

As noted by the trial court, the parenting schedule in Husband‟s proposed PPP provides for 395 days of

total parenting time per year.

Husband calculated his monthly income using a $100,000 base salary without adding any amount for

bonuses.

but stated that the value of the stock was $468,599. Husband‟s filings did not propose

any specific method of splitting the remainder of the parties‟ marital property.

A bench trial was conducted over the course of eleven days, beginning on April

29, 2013 and concluding with closing arguments on May 15, 2013. The parties stipulated

the existence of grounds for divorce, and evidence was presented on other issues, such as

spousal support, child support, the PPP, distribution of marital assets and debt, and

attorney‟s fees. The trial court also heard a great deal of testimony regarding the

appropriate valuation of the parties‟ primary marital asset: the 5,030 shares of LWM

stock. In addition to hearing testimony from Husband and Wife, the court heard the

testimony of Robert Vance, an expert in forensic accounting, and Jim Isaacs, the

President and CEO of LWM. The court also reviewed the deposition testimony of the

child‟s psychologist, Dr. Elizabeth Harris. On May 15, 2013, Wife‟s attorney submitted

an affidavit of attorney‟s fees stating that through that date, Wife had been charged

$384,652.50 in attorney‟s fees and $36,420.82 in expenses. Wife argued that based on

her limited income, she did not have the ability to pay her own attorney‟s fees and

expenses and requested that the trial court order Husband to pay the full $421,073.32

amount as alimony in solido.

July 25, 2013 Order

After reviewing the testimony and exhibits presented at trial, the trial court

announced its findings and conclusions orally on May 29, 2013. On July 25, 2013, the

trial court entered its Final Decree of Divorce along with a separate written memorandum

of Findings of Fact and Conclusions of Law. Pursuant to the parties‟ stipulation that

Husband‟s inappropriate marital conduct constituted grounds for divorce, the trial court

declared the parties divorced. With respect to the division of property, the trial court

found that the parties‟ compliance with Local Rule 14 was “marginal at best” and made

its task of dividing the marital assets nearly impossible. Nevertheless, the court

attempted to make such an equitable distribution. The court awarded each party the cars,

furniture, and other personal property currently in their possession. The trial court found

that the parties possessed “modest sums” of money held in various checking and savings

accounts and ordered that each party retain the funds of separate bank accounts and split

funds in any joint accounts. The trial court found that the parties‟ other marital assets

included approximately $57,735 in Husband‟s LWM 401(k) account and $43,319 held in

a joint escrow account by the parties‟ attorneys. The court awarded Husband the $43,319

held in escrow but ordered that it be used to satisfy the parties‟ two substantial marital

debts: $29,584 in credit card debt and $24,597 owed to the IRS for taxes due but not paid

in 2011. The court also awarded Husband the full amount of his 401(k) but ordered that

it also be used to satisfy the marital debts if they were not paid off within a year. Because

the parties sold the marital home during the course of the litigation, the parties did not

have mortgage debt at the time of the hearing.

The parties‟ primary marital asset at the time of the hearing was Husband‟s

5,030.03 shares of LWM stock. Notably, the stock was issued by LWM subject to tight

restrictions on its transfer and liquidation. At the time of the trial, the stock could not be

liquidated without penalty of a substantial discount. Throughout the proceedings, each

party vigorously disputed the other‟s valuation of the stock. Wife argued that the stock

should be valued at $839,261, an amount based on its 2012 year-end book value as set

forth in an independent audit. Conversely, Husband argued that the stock should be

valued at $468,599, an amount the trial court determined to be based on its value after the

penalty and after taxes. The trial court accepted Wife‟s valuation of the stock and

concluded that she should be awarded fifty percent of that amount, or $419,631. Due to

the restrictions on the transfer of the stock, the trial court ordered that Husband pay that

amount, with three percent interest annually, as alimony in solido over a period of years

with payments beginning at $15,000 per year and increasing by $2,000 per year until

fully paid. Finally, the court found that Husband dissipated marital assets by writing

checks to Ms. McFadden for $15,633.06 and ordered that Husband reimburse Wife that

amount.

Next, the court turned its attention to parenting issues. After reviewing the

proposed PPPs submitted by each party, the court noted the parties agreed that Wife

should be named the child‟s primary residential parent. The parties‟ primary dispute with

regard to parenting was whether the court should impose restrictions on the presence of

Ms. McFadden around the child. Husband‟s proposed PPP did not impose any

restrictions or limitations with regard to Ms. McFadden. Wife‟s proposed PPP provided

that until Father lawfully married Ms. McFadden, Father would not be permitted to

exercise any overnight parenting time with the child and would not be permitted to leave

the child in Ms. McFadden‟s care for any length of time. The trial court adopted Wife‟s

proposed PPP. In doing so, it expressed concern regarding Ms. McFadden‟s behavior

and her parenting of her own children. Additionally, the court found that Husband

prioritized his relationship with Ms. McFadden over his relationship with the child.

Citing those concerns, the court found that Wife‟s proposed PPP would serve the child‟s

best interests and adopted her plan without any modification. As such, the court also

adopted Wife‟s calculations of the parties‟ respective monthly incomes for purposes of

computing Husband‟s child support obligation and ordered Husband to make child

support payments to Wife of $1,421 per month. Additionally, the trial court ordered

Husband to pay retroactive child support of $34,109.25 for arrearages from the date of

the parties‟ separation through the date of the trial.

Next, the trial court addressed the issue of spousal support. Given the large

income disparity of the parties, the trial court determined that Wife was the

“disadvantaged spouse” as that term is used in the relevant statutes. To determine

whether spousal support was warranted and, if so, the nature, amount, and duration of the

support, the trial court considered Wife‟s need and Husband‟s ability to pay. Based on

Wife‟s pre-trial filings, the court found that Wife demonstrated a need for long-term

support of $4,000 per month. In considering Husband‟s ability to pay that support, the

trial court examined Husband‟s pre-trial filings and rejected several of the litigation-

related expenses and loans he had listed as expenses. After doing so, the court calculated

Father‟s “real” expenses to be $4,179 per month. The trial court found that even if it

accepted Husband‟s calculation of his net monthly income and subtracted Husband‟s

“real” expenses, Husband would be able to meet his child support obligations, make his

monthly support payments, and still have money left over each month. Consequently, the

court ordered Husband to pay Wife $4,000 per month as alimony in futuro until her death

or remarriage. To secure that obligation, the trial court also ordered Husband to secure

and maintain a life insurance policy in the sum of $1,500,000 with Wife designated as the

primary beneficiary until her death or remarriage.

Finally, the court addressed Wife‟s contention that Husband should be responsible

for her attorney‟s fees and other litigation expenses. In doing so, the trial court stated that

the litigation was “entirely of the Husband‟s making.” The trial court found that

Husband filed the original complaint for divorce, leaving Wife with no choice but to

defend herself. Moreover, the trial court found that many of the expenses incurred by

Wife in the lawsuit were the result of Husband‟s attempts to throw up “smoke screen

after smoke screen” and “roadblock after roadblock” in the discovery process. The trial

court ordered that Husband pay $421,073.32 to Wife as alimony in solido for her

attorney‟s fees and expenses incurred through May 14, 2013. Additionally, the trial court

ordered that Wife‟s attorney file an additional supplemental affidavit to include

additional attorney‟s fees and expenses incurred after that date through the entry of the

final decree of divorce. Wife‟s attorney subsequently filed an affidavit reflecting

additional attorney‟s fees and expenses in the amount of $40,513.50, and the court

ordered Husband to also pay that amount as alimony in solido.6

In sum, as set forth in its July 25, 2013 Final Decree of Divorce, the trial court

awarded Wife the following judgments against Husband: (1) $419,631, reflecting the

value of Wife‟s interest in LWM stock; (2) $15,633.06, reflecting the amount of

Husband‟s dissipation of marital assets; (3) $34,109.25, reflecting the amount of

retroactive child support Husband owed; (4) $421,073.32 for attorney‟s fees and

The trial court requested evidence of fees and expenses incurred by Wife after May 14, 2013 during its

oral ruling on May 29, 2013. On July 19, 2013, Wife‟s attorney submitted a supplemental affidavit of

attorney‟s fees reflecting fees and expenses incurred by Wife from May 15 through July 18, 2013 of

$40,513.50. Accordingly, both totals were included in the trial court‟s Final Decree of Divorce entered

on July 25, 2013.

expenses incurred through May 14, 2013; and (5) 40,513.50 for attorney‟s fees and

expenses incurred from May 15 through July 18, 2013. The listed amounts reflected a

total judgment against Husband in the amount of $930,960.13. The trial court also

ordered Husband to make payments to Wife of $1,421 per month in child support and

$4,000 per month in alimony in futuro. To secure satisfaction of the judgments, the trial

court imposed a lien on all LWM stock and all real and personal property owned or

thereafter acquired by Husband. Father timely filed a Notice of Appeal from the trial

court‟s July 25, 2013 ruling. Prior to Husband‟s appeal being heard by this Court,

however, events transpired that necessitated further proceedings in the trial court.

Modification Proceedings and March 13, 2014 Order

On November 14, 2013, a Sheriff‟s deputy went to the residence shared by

Husband and Ms. McFadden to execute on a levy filed by Wife. While searching the

premises for property to levy, the deputy discovered drug paraphernalia and a marijuana

plant in the parties‟ detached garage. Husband and Ms. McFadden were both arrested

and charged with unlawful possession of a controlled substance with intent to sell.

On December 19, 2013, Wife filed a petition to modify the PPP order in light of

the criminal charges pending against Husband and Ms. McFadden. In her petition, Wife

sought to temporarily modify the PPP to suspend Husband‟s parenting time or,

alternatively, to limit Husband‟s parenting time to two hours per day on days he is

scheduled to have parenting time and require that his parenting time be supervised by

Wife, Wife‟s mother, or another person charged with such supervision. Additionally,

Wife sought to add provisions prohibiting the child from being taken to the home

Husband shared with Ms. McFadden, prohibiting the child from being in Ms.

McFadden‟s presence, prohibiting Husband from taking the child out of school, and

requiring Husband, at his expense, to submit to random urine and hair follicle drug

screens.

Prior to the trial court‟s hearing on the petition, the charges against Husband were

dismissed, and Ms. McFadden entered a plea that placed her in a Diversion Program until

January 2015. The trial court held a hearing on Wife‟s petition over the course of two

days on January 31 and February 14, 2014. The trial court heard testimony from each

party as well as from a Shelby County Sheriff‟s Deputy called to investigate the

marijuana plant found in Husband‟s garage. At the outset of the proceedings, Wife‟s

attorney submitted a proposed ruling that provided for modification of the PPP to add the

following residential schedule and restrictions:

1. For the period of January 31, 2014 through January 20, 2015, the

following conditions shall apply:

a. Father shall exercise unsupervised parenting time on the following

dates and times: 5:00 p.m. to 8:00 p.m. on Fridays, 9:00 a.m. to 7:00

p.m. on Saturdays, and 9:00 a.m. to 5:00 p.m. on Sundays, every

other weekend, beginning January 31, 2014.

b. Father may exercise additional, unsupervised parenting time from

5:30 p.m. to 7:00 p.m. on Tuesdays.

c. For those holidays that Father was permitted to exercise parenting

time pursuant to the parties‟ Permanent Parenting Plan, entered July

25, 2013, Father may exercise unsupervised parenting time from

9:00 a.m. to 5:00 p.m.

d. Father shall continue to pick the child up from and return the child to

Mother‟s residence.

e. Father shall not exercise any parenting time at the residence he

shares with Ms. Elizabeth McFadden.

f. Father shall not permit Ms. McFadden to have any contact with

[child] and shall not exercise any parenting time in the presence of

or near Ms. McFadden.

g. This residential schedule shall be conditioned upon Father and Ms.

McFadden agreeing to submit to three (3) urine and hair follicle drug

screenings at Mid-South Drug Testing, to be randomly requested by

Mother, at any time in Mother‟s discretion, and to be completed

within five (5) hours of such request. Father shall pay for the

screenings. If Father or Ms. McFadden either refuse to submit to a

drug screening pursuant to the terms described in this paragraph or

fail a screening, Father shall be limited to only supervised parenting

time as described in Section B, including subsections one (1)

through three (3), of the Fiat of Mother‟s Petition to Modify

Permanent Parenting Plan Order, filed December 19, 2014.

2. If Ms. McFadden fulfills the requirements of her diversion program,

which is scheduled to be completed on January 20, 2015, Father shall

resume exercising parenting time consistent with the parties‟ Permanent

Parenting Plan, entered July 25, 2013, with the following conditions:

a. Father must supervise [child] for the entire duration of his parenting

time and shall not permit [child] to be in the care of Ms. McFadden

unsupervised for any length of time.

b. This residential schedule shall be conditioned upon Father and Ms.

McFadden agreeing to three (3) drug screenings per year, as set out

in paragraph (1)(g) until January 20, 2017.

Wife testified that she was worried for her child‟s safety and viewed the

restrictions in her proposed modified PPP as necessary to ensure that Ms. McFadden

could demonstrate responsibility and appropriate behavior before being allowed around

the child. During his testimony, Husband stated that the marijuana plant belonged to Ms.

McFadden. Husband testified that Ms. McFadden obtained the plant to limit the severity

of migraines she experienced over the course of the summer in 2013. Husband insisted

he had not helped Ms. McFadden in growing or nurturing the plant and denied that he

smoked marijuana. Husband testified that Ms. McFadden had never smoked marijuana

around the child and insisted that the presence of the marijuana plant did not pose any

threat to the safety of the child. Nevertheless, at the close of the hearing on February 14,

2014, the trial court announced its finding that a material change of circumstance had

occurred and that the child‟s best interests would be served by modifying the PPP to

include the residential plan and restrictions set forth in Wife‟s proposed ruling. On

March 13, 2014, the trial court entered a written order memorializing its ruling and

incorporating a transcript of its prior oral ruling. In a separate order, the trial court also

awarded Wife $9,528 for attorney‟s fees and expenses incurred in connection with her

petition to modify. Husband timely filed a second Notice of Appeal from the trial court‟s

March 13, 2014 ruling. This Court subsequently ordered that the two appeals be

consolidated.

II. ANALYSIS

Husband presents a number of issues for our review on appeal. We will address

each of Husband‟s arguments in turn. Though Husband does not challenge the trial

court‟s distribution of the parties‟ marital assets and debts, he contends that the trial court

erred in concluding that he dissipated marital assets. Husband argues that the trial court

erred in adopting Wife‟s proposed PPP, in modifying the PPP, in calculating Husband‟s

child support obligation, and in awarding retroactive child support. Husband contends

that the trial court erred in awarding alimony in futuro to Wife and in setting an amount

of alimony in futuro that exceeds Wife‟s need and his ability to pay. Finally, Husband

asserts that the trial court should not have ordered him to pay Wife‟s attorney‟s fees and

litigation expenses.

Wife argues that the trial court‟s ruling should be affirmed. Though Wife does not

seek any additional award of alimony in futuro, as further support for the trial court‟s

decision she asserts that the trial court erred in excluding certain expenses in its

calculation of her monthly need and in miscalculating the amount of Husband‟s net

monthly income. Wife also seeks attorney‟s fees and expenses for this appeal.

On appeal, we review the trial court‟s findings of fact de novo on the record with

the presumption that those findings are correct, “unless the preponderance of the

evidence is otherwise.” Tenn. R. App. P. 13(d). Additionally, because the trial court has

the opportunity to observe the witnesses‟ demeanor and hear the in-court testimony, we

afford considerable deference to the trial court‟s credibility determinations and the weight

given to oral testimony. Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App.

2010). We review the trial court‟s conclusions of law de novo with no presumption of

correctness. Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003).

A. Dissipation

We begin by addressing Husband‟s argument that the trial court erred in

concluding that he dissipated marital assets by writing checks totaling $15,633.06 to Ms.

McFadden. In its Findings of Fact and Conclusions of Law, the trial court stated:

90. There has been an issue raised in this case regarding dissipation by Mr.

Holdsworth of marital assets or portions of the marital estate in terms of his

relationship with Elizabeth McFadden. Found among the exhibits in the

cause is Trial Exhibit No. 32 which is a Rule 1006 summary reflecting the

sum of fifteen thousand six hundred thirty-three dollars and six cents

($15,633.06) in checks actually written by Mr. Holdsworth to Elizabeth

McFadden.

91. Again, considering the entire body of proof as a whole, the Court finds

a dissipation of marital assets in that amount and will award judgment in

favor of the Wife against the Husband. The record is not clear, but there

appears to be other dissipation -- for example, money spent for gifts of

jewelry and the like to Ms. McFadden -- but there is no empirical evidence

in this record of a specific amount for which the Court may enter judgment

without speculation.

Husband acknowledges that he wrote the checks to Ms. McFadden but contends that the

trial court erred in failing to consider the purpose of the checks. Husband contends that

the majority of the checks are for living expenses he and Ms. McFadden shared after

moving in together in August 2012.

A party‟s dissipation of marital or separate property is one of many factors a trial

court may take into consideration in making an equitable division of a marital estate.

Tenn. Code Ann. § 36-4-121(c)(5). While there is no statutory definition of dissipation,

the term typically refers to the use of marital property for a purpose unrelated to the

marriage, often to “hide, deplete, or divert” marital property after a marriage is

irretrievably broken. Larsen-Ball v. Ball, 301 S.W.3d 228, 235 (Tenn. Ct. App. 2010).

The concept of dissipation is based on waste. Altman v. Altman, 181 S.W.3d 676, 681

(Tenn. Ct. App. 2005). In determining whether dissipation has occurred, the court must

distinguish between dissipation and discretionary spending. Larsen-Ball, 301 S.W.3d at

235. While discretionary spending may be ill-advised, it is typical of the parties‟

expenditures throughout the course of the marriage. Id. Expenditures that constitute

dissipation, on the other hand, are so far removed from normal expenditures that they can

be characterized as wasteful or self-serving. See Watson v. Watson, 309 S.W.3d 483, 490

(Tenn. Ct. App. 2009). In Watson, this Court discussed the appropriate analysis for

allegations of dissipation:

In determining whether dissipation occurred, we find trial courts should

consider the following: (1) whether the evidence presented at trial supports

the alleged purpose of the various expenditures, and if so, (2) whether the

alleged purpose equates to dissipation under the circumstances. The first

prong is an objective test. To satisfy this test, the dissipating spouse can

bring forward evidence, such as receipts, vouchers, claims, or other similar

evidence that independently support the purpose as alleged. The second

prong requires the court to make an equitable determination based upon a

number of factors. Those factors include: (1) the typicality of the

expenditure to this marriage; (2) the benefactor of the expenditure, namely,

whether it primarily benefitted the marriage or primarily benefitted the sole

dissipating spouse; (3) the proximity of the expenditure to the breakdown

of the marital relationship; (4) the amount of the expenditure.

Id. at 490-91 (quoting Ward v. Ward, No. W2001-01078-COA-R3-CV, 2002 WL

31845229, at *3 (Tenn. Ct. App. Dec. 19, 2012)). The party alleging dissipation has the

initial burden of production and the burden of persuasion at trial. Larsen-Ball, 301

S.W.3d at 235. Once the party alleging dissipation establishes that the money has been

dissipated, the burden shifts to the party who spent the money to produce evidence to

show that the expenditures were appropriate. Watson, 309 S.W.3d at 491.

During the hearing, Wife introduced evidence in the form of a Rule 1006

summary7 that between September 1, 2011 and March 14, 2013, Husband wrote forty-

one checks to Ms. McFadden totaling $15,633.06. Husband did not object to the

evidence. By introducing evidence of the checks, several of which are for amounts

exceeding one thousand dollars, written by Husband to his paramour, Wife satisfied her

initial burden of production and shifted the burden to Husband to produce evidence that

the expenditures were appropriate. See Larsen-Ball, 301 S.W.3d at 236 (stating that the

money husband spent on his paramours “clearly constitutes dissipation”). Husband

contends that he met that burden, but relies on little more than his own testimony in doing

so. Specifically, Husband asserts that his undisputed testimony demonstrates that the

checks to Ms. McFadden were for living expenses. Given the trial court‟s findings on

Husband‟s credibility, this argument carries little weight. Moreover, we note that of the

ten checks for which Husband gave an explanation on direct examination, four were

intended to reimburse Ms. McFadden for rental of a condo for their July 2012 South

Carolina vacation. In his brief, Husband also states that the memo line of each check

contains a notation of its purpose. There are 156 checks attached to the Rule 1006

summary submitted at trial. We decline to sift through each check in an effort to discern

which notations appear to indicate an expenditure for living expenses when Husband has

apparently declined to do so himself. Moreover, we note that while Husband states that

each check contains a notation of its purpose, he does not argue that the stated purposes

are not indicative of dissipation. In light of the foregoing, we are not able to conclude

that the evidence preponderates against the trial court‟s finding that Husband‟s

expenditures constituted dissipation.

Notwithstanding our conclusion that the evidence supports the trial court‟s finding

that the checks Husband wrote to Ms. McFadden constituted dissipation, we note that the

trial court ordered Husband to reimburse Wife for the full amount of the checks. The

trial court‟s award ignores the fact that Husband also had an interest in the money. See

Odom v. Odom, No. E2007-02250-COA-R3-CV, 2008 WL 4415429, at *8, (Tenn. Ct.

App. Sept. 30, 2008) (noting that each of the divorcing parties was entitled to one-half of

the dissipated assets). Here, because the trial court divided the parties‟ marital assets

equally, we conclude that Husband is entitled to one-half of the assets he dissipated.

Therefore, we modify the amount of the trial court‟s dissipation award to $7,816.53 to

reflect Husband‟s one-half interest in the dissipated assets.

B. Permanent Parenting Plan

This case presents an unusual mix of issues related to the PPP. The trial court

“The contents of voluminous writings, recordings, or photographs which cannot conveniently be

examined in court may be presented in the form of a chart, summary or calculation. The originals or

duplicates shall be made available for examination or copying, or both, by other parties at reasonable

times and places. The court may order that they be produced in court.” Tenn. R. Evid. 1006.

adopted Wife‟s proposed PPP on July 25, 2013 as part of its Final Decree of Divorce.

Later, however, Husband and Ms. McFadden were discovered to have a marijuana plant

growing in their garage and were both arrested and charged with unlawful possession of a

controlled substance with intent to sell. Wife filed a petition to modify the PPP to impose

certain restrictions on Husband‟s parenting time. After a hearing, the trial court modified

the PPP to incorporate the restrictions. Husband challenges both the original PPP and the

modified PPP. Because the modified PPP is essentially the same as the original PPP with

additional limitations on Husband‟s parenting time, it is necessary for us to address

Husband‟s challenges with regard to both. To begin, we address the arguments Husband

raises related to the trial court‟s entry of the original PPP.

Original Permanent Parenting Plan

Prior to trial, each party submitted a proposed PPP. In its Final Decree of Divorce,

the trial court adopted Wife‟s proposed PPP without modification. Though the plans

submitted by each party provide for Wife to be designated as child‟s primary residential

parent, Husband takes issue with the trial court‟s allocation of residential parenting time.

The residential parenting schedule in Wife‟s proposed PPP provided for Wife to

have 288 days of parenting time with the child per year and for Husband to have 77 days.

The parenting schedule in Husband‟s proposed PPP provided for Wife to have 255 days

of residential parenting time with the child per year and for Husband to have 140 days.

As the trial court noted, Husband‟s proposed allocation of residential parenting time calls

for a 395-day calendar year. Though Husband‟s proposed PPP sets forth day-to-day and

holiday/school vacation schedules, given the many variables it contemplates, it is

impossible to determine exactly where the extra thirty days of parenting time should be

subtracted. In any event, the trial court found that after considering the testimony and

evidence presented by the parties, “the plan proposed by Mother is in the manifest best

interest of the child under all of the facts and circumstances in this case.” Husband

argues that the evidence presented “strongly preponderates” against the trial court‟s

parenting time determination.

Creating a workable parenting plan is one of the most important responsibilities

courts have. Armbrister v. Armbrister, 414 S.W.3d 685, 696 (Tenn. 2013). The

Tennessee Supreme Court recently explained the standard applicable to this Court‟s

review of a residential parenting schedule in Armbrister:

Because decisions regarding parenting arrangements are factually driven

and require careful consideration of numerous factors, Holloway v. Bradley,

190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948

S.W.2d 739, 740 (Tenn.Ct.App.1997), trial judges, who have the

opportunity to observe the witnesses and make credibility determinations,

are better positioned to evaluate the facts than appellate judges. Massey–

Holt v. Holt, 255 S.W.3d 603, 607 (Tenn.Ct.App.2007). Thus, determining

the details of parenting plans is “peculiarly within the broad discretion of

the trial judge.” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988)

(quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973)).

“It is not the function of appellate courts to tweak a [residential parenting

schedule] in the hopes of achieving a more reasonable result than the trial

court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.2001). A trial court‟s

decision regarding the details of a residential parenting schedule should not

be reversed absent an abuse of discretion. Id. “An abuse of discretion

occurs when the trial court . . . appl[ies] 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.” Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn.2011). A trial court abuses its

discretion in establishing a residential parenting schedule “only when the

trial court‟s ruling falls outside the spectrum of rulings that might

reasonably result from an application of the correct legal standards to the

evidence found in the record.” Eldridge, 42 S.W.3d at 88.

Armbrister, 414 S.W.3d at 693.

Husband contends that the trial court adopted Wife‟s proposed PPP based on its

moral disapproval of his actions and its desire to punish him for his affair with Ms.

McFadden. Husband argues that the trial court‟s underlying motivation for adopting

Wife‟s plan is evidenced by its failure to conduct a comparative fitness analysis or

consider the statutory factors enumerated in Tennessee Code Annotated section 36-6-

404(b).8 Husband further contends that an examination of the trial court‟s written

statement of findings and conclusions demonstrates that the court failed to consider many

important facts before adopting Wife‟s proposed PPP. Husband insists that after proper

reexamination of the facts, this Court should articulate a modified PPP that provides

Husband with more participation in the child‟s life.

In crafting a residential schedule, section 36-6-404(b) of the Tennessee Code

In his brief, Husband cites the fifteen factors set forth in Section 36-6-106(a) applicable to trial courts in

designating the primary residential parent. At the time of the hearing in this case, trial courts setting

residential schedules were guided by a different, albeit similar set of sixteen factors listed in Section 36-6-

404(b)(1)-(16). Tenn. Code Ann. § 36-6-404(b) (2010). By Ch. 617 Pub. Acts of 2014, Section 36-6-

404(b) was amended by replacing the list of sixteen factors with language directing the court to consider

the fifteen factors at Section 36-6-106(a) when determining the residential schedule. Because there is

little substantive difference between the factors in the two statutes, we proceed with our analysis as

though Husband had cited the factors in Section 36-6-404(b).

directs the trial judge to consider fifteen enumerated factors, as well as any other factors

it deems relevant, to determine how much time the child should spend with each parent.

Although the statute does not require the trial court to list each applicable factor along

with its conclusion as to how that particular factor impacted the court‟s overall

determination, the statute clearly requires the court to at least consider all applicable

factors. In re Connor S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *7

(Tenn. Ct. App. Nov. 8, 2012) (internal citations omitted).

Here, the trial court did not reference each of the section 36-6-404(b) factors

specifically. With regard to the fifteen enumerated factors, the trial court stated in its

Findings of Fact and Conclusions of Law:

The Court has carefully studied points one (1) through fifteen (15) in that

code section, and they need not be repeated and articulated here.

Considering each one of those points, the Court has articulated previously

facts which address virtually all of them, and as to all of those points the

Mother comes out ahead in virtually each and every point.

In considering other relevant factors, the court was particularly bothered by Husband‟s

decision to vacation with Ms. McFadden rather than his daughter in July 2012. Husband

and Ms. McFadden had planned and funded the trip in advance in anticipation that it

would be their honeymoon. Though Husband and Ms. McFadden were not married when

the time for the trip arrived, as the trial court had not yet entered a final decree of divorce

in this case, they took the trip as planned. In its findings, the trial court criticized

Husband‟s decision to take the trip with Ms. McFadden rather than use it as an

opportunity to bond with his daughter. In part, the trial court stated that, “[Husband]

chose to follow his own selfish desires by doing the „honeymoon‟ with Elizabeth

McFadden. That speaks volumes to this Court with regard to where Father‟s priorities

rest when it comes to his daughter.” Husband contends that the trial court‟s statements in

reference to his trip with Ms. McFadden reveal that it failed to consider important facts

with regard to the statutory factors.

After reviewing the evidence, we are unconvinced by Husband‟s argument. From

the time the child was born in 2007 until her return to the workforce in April 2012, Wife

stayed at home to care for the child. Even since her return to the workforce, Wife has

continued to be heavily involved in the child‟s life on a daily basis. Wife testified that

the flexibility in her work schedule allows her to have a great deal of participation in the

child‟s life. Wife testified that she is able to take days off to go on all of the child‟s

school field trips. Conversely, Husband testified that at the time of the hearing he had

been forced to ask Wife to deviate from the parties‟ temporary parenting plan on multiple

occasions due to work-related conflicts.

Moreover, we note that Husband does not specify any particular modifications to

the trial court‟s allocation of parenting time that he would like this Court to make. In the

absence of such a specification, it is reasonable to assume that Husband seeks the entry of

a PPP that more closely resembles the one he submitted prior to trial. We note, however,

that a comparison of the proposed residential schedules submitted to the trial court by

each party reveals that their specific allocations of parenting time are very much alike.

Both schedules provide that Husband will exercise parenting time every other weekend.

The schedules divide holidays and other school-free days similarly. Both plans provide

for Husband to exercise two full weeks of parenting time in the summer (though Wife‟s

plan sets specific dates for summer visitation and Husband‟s plan does not). The two

schedules also provide essentially the same allocation of parenting time during the child‟s

winter vacation. Wife‟s schedule actually provides more parenting time for Husband

during the child‟s fall and spring vacations than Husband‟s schedule. There are only two

differences in Husband‟s proposed plan that result in him having more parenting time

than Husband receives under Wife‟s schedule: (1) Husband‟s schedule provides that his

parenting time every other weekend will begin on Friday at 5:30 p.m. and end when he

drops the child off at school on the following school day, while Wife‟s schedule provides

that Husband‟s parenting time every other weekend will begin on Friday at 5:00 p.m. and

end on Sunday at 5:00 p.m.; and (2) Husband‟s schedule provides that he will have

overnight parenting time every other Thursday night, while Wife‟s schedule provides that

Husband may have additional parenting time each Tuesday from 5:30pm to 7:00pm. At

the hearing, Wife expressed concern with the Thursday night visitation in Husband‟s

proposed schedule because the child often has tests on Friday, and she was not sure

Husband would consistently get her to school on time. Having considered the evidence

presented, we are unable to conclude that the trial court abused its discretion in adopting

the proposed PPP submitted by Wife rather than the one submitted by Husband.

Therefore, we affirm the trial court‟s allocation of parenting time between the parties.

Modification of the Permanent Parenting Plan

On December 19, 2013, Wife filed a petition to modify the PPP to add certain

restrictions on Husband‟s parenting time after Husband and Ms. McFadden were both

arrested and charged with unlawful possession of a controlled substance with intent to

sell. Prior to the trial court‟s hearing on the petition, the charges against Husband were

dismissed, and Ms. McFadden entered a plea that placed her in a Diversion Program until

January 2015. The trial court conducted a hearing on the petition over the course of two

days on January 31 and February 14, 2014. On March 13, 2014, the trial court entered an

order granting Wife‟s petition to modify the PPP. The court attached a copy of the

modified PPP, which included the following provisions:

The following special provisions apply:

1. For the period of January 31, 2014 through January 20, 2015, the

following conditions shall apply:

a. Father shall exercise unsupervised parenting time on the following

dates and times: 5:00 p.m. to 8:00 pm. on Fridays, 9:00 a.m. to 7:00