The opinion
04/23/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 5, 2018 Session
JOE LOGAN DIFFIE v. THERESA CRUMP DIFFIE
Appeal from the Chancery Court for Williamson County
No. 44100 Joseph A. Woodruff, Judge
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No. M2018-00267-COA-R3-CV
___________________________________
In this divorce action, the husband contends the trial court erred in the division of
marital property in awarding 60% of the marital estate to the wife and 40% to the
husband, and in its decision to award the wife all four types of alimony. The wife takes
issue with the amount of alimony awarded to her, and both parties seek attorney’s fees on
appeal. We affirm the award of alimony in solido. As for the awards of alimony in futuro
and transitional alimony, an award of alimony must be based on the factors known at the
time of the hearing, Ford v. Ford, 952 S.W.2d 824, 829-30 (Tenn. Ct. App. 1996);
however, the trial court considered the husband’s “speculative income,” that being what
he might earn in the future, in setting the amount of alimony in futuro and transitional
alimony. Accordingly, we reverse the amounts awarded for in futuro and transitional
alimony and remand to the trial court to make additional findings of fact and conclusions
of law to determine the wife’s need for each category of alimony and the husband’s
ability to pay based upon the relevant factors and facts known at the time of the divorce,
and enter judgment accordingly. We vacate the award of rehabilitative alimony because it
was not requested, and there is no competent evidence to support an award of
rehabilitative alimony. Moreover, because we have affirmed the finding that the wife is
entitled to receive transitional alimony, which should be awarded only when
rehabilitation is not necessary, see Tenn. Code Ann. § 36–5–121(d)(4), she may not be
awarded rehabilitative alimony. Additionally, we decline the husband’s request to recover
his attorney’s fees on appeal but grant the wife’s request and remand this issue for the
trial court to award the fees and expenses she incurred on appeal that were reasonable and
necessary.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part, Vacated in Part, Reversed in Part and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which RICHARD
R. DINKINS and W. NEAL MCBRAYER, JJ., joined.
William L. Moore, Jr., Gallatin, Tennessee, for the appellant, Joe Logan Diffie.
Edward Paul Silva and William Philip Holloway, Franklin, Tennessee, for the appellee,
Theresa Crump Diffie.
OPINION
Joe Logan Diffie (“Husband”) and Theresa Crump Diffie (“Wife”) were married
in March 2000. In May 2015, Husband filed for divorce in Williamson County Chancery
Court asserting grounds of irreconcilable differences. Wife answered and filed a counter-
claim on the grounds of adultery. The trial court allowed Husband to file an amended and
supplemental complaint for divorce, in which he added the additional ground of Wife’s
inappropriate martial conduct. The five-day bench trial took place June 19–21 and
October 10–11, 2017.
The parties were married for 17 years. At the time of trial, Wife was 48 years old
and Husband was 58. Wife had not previously been married, while this was Husband’s
third marriage. The couple has one child together who was 13 at the time of trial. Wife
has no other children. Husband has five other adult children from previous relationships.
Wife graduated high school in 1987. Following high school, Wife enrolled in the
police academy, and upon graduation, she became a sworn police officer in Perry,
Florida. After a year with the police department, Wife worked for TransCor America, a
company that transports prison inmates. Approximately one year later, Wife moved to
New York, where she managed a restaurant and briefly enrolled in community college.
She then moved to Texas where she managed a restaurant in the Dallas/Fort Worth area.
Less than a year later, Wife moved back to Florida where she took a job doing
miscellaneous office work for a construction company in Orlando. Soon thereafter she
was promoted to the position of payroll clerk. Wife was working in this job in early 1999
when she met Husband.
Husband obtained his high school diploma and served on active duty in the
military before being honorably discharged. He moved to Nashville in 1986 where he
established a successful music career as a country music recording artist and songwriter.
As a recording artist, his debut single went to number one on the country music charts.
Husband also enjoyed great success as a songwriter. The first six songs Husband wrote
went to number one. He performed live concert engagements, appeared on television
shows, and his songs were a staple on the playlists of radio stations in the country music
market. Although Husband’s music career peaked in the mid-1990s, he remains a
celebrity and is very popular among fans of country music, and he continues to play
concerts and tour.
-2-
In early 1999, Wife met Husband backstage after one of his concerts. The parties
began dating immediately and, to quote songwriter Dennis Linde, “Everyone knew it was
love from the start.”1 The parties married a year later in March 2000.2 During the early
years of marriage, Wife traveled with Husband as he toured and performed. After Wife
became pregnant with the couple’s child, she stopped travelling with Husband a few
months before the baby was due. Their daughter, Kylie, was born in May 2004. After
that, the parties made a joint decision for Wife to stay home and care for their daughter
and household. Wife remained unemployed outside the home for the duration of the
marriage.
Over time, the parties’ relationship soured. Husband admitted being involved in
numerous extramarital affairs throughout the marriage. In February 2014, Husband began
an extramarital relationship with a woman referred to as “TT” in the official record. A
considerable amount of time at trial was spent presenting evidence of the great lengths
Husband went to conceal his relationship with TT, and the dissipation of marital funds.
Specifically, Husband gave TT a credit card under his manager’s name and agreed to pay
it off after the divorce was final. Husband kept this information from Wife with the help
of his manager.
Regarding the couple’s finances, the parties enjoyed a standard of living that
exceeded their income during the marriage, which resulted in a gradual dissipation of
assets to support their lifestyle. Husband’s excessive generosity towards his adult
children was a significant contributing factor in the couple’s diminishing finances, as was
Husband’s lifestyle on the road, which included the pursuit of his relationship with TT.
After Husband filed for divorce, Wife began working part time at a retail book store
where she works approximately three days a week earning seven dollars an hour. For
purposes of calculating Wife’s income, the trial court imputed Wife with full-time
minimum wage earnings of $1,256 per month. Husband continues to tour and reasonably
maximize his earning potential, grossing over $1.7 million in income in 2016.
Testimony regarding the health of the parties was presented at trial. Wife has been
diagnosed with rheumatoid arthritis for which she takes prescription medication under the
supervision of a medical doctor. Husband is in reasonably good health and offered no
evidence of chronic health problems for which he receives medical treatment.
1
JOE DIFFIE, John Deere Green, on HONKY TONK ATTITUDE (Epic Records 1993).
2
On March 10, 2000, prior to the marriage, the parties entered into a pre-nuptial agreement; and by its
own terms, the pre-nuptial agreement expired on March 9, 2009, which was prior to the commencement
of the divorce proceedings.
-3-
The parties jointly retained an accounting firm to appraise some of their intangible
assets. The parties’ joint expert performed a valuation of Husband’s song catalogue for
songwriter and artist royalties only for the songs written and recorded during the
marriage and assigned a value of $13,600. The expert did not render an opinion, and no
value was assigned, for songs Husband wrote or recorded prior to the marriage.
Husband had a pension plan connected with his membership in the American
Federation of Television and Radio Artists (“AFTRA”), the recognized union for
television and radio performers. The aggregate amount of contributions paid into
Husband’s AFTRA account during the marriage was calculated to be $11,607. However,
no value was assigned to Husband’s premarital contributions, and there was no evidence
presented of the AFTRA pension benefit’s present or future value.
All of the parties’ income flowed through JLD, Inc., a subchapter S corporation, of
which Husband is the sole owner. JLD, Inc. was created prior to the marriage. The
company provides a limited liability shield between claims of creditors and the parties’
personal assets. The value of JLD, Inc. stock is completely dependent upon Husband’s
ability to generate income as a performing artist. All revenue is used to pay creditors, pay
expenses associated with Husband’s activity as a performing artist, pay the parties’
personal expenses (including estimated federal income tax payments) or distributed to the
parties as joint income. Because Husband’s touring activity is cyclical, the value of JLD,
Inc. fluctuates greatly month to month. The parties’ joint expert performed a valuation
appraisal of JLD, Inc. and assigned a value of $48,000 for the corporation. This value is
not disputed by the parties.
The most valuable marital asset was the parties’ home, located on Weatherly
Drive in Brentwood, Tennessee, which had a fair market value of $860,000. The existing
mortgage on the house was $246,744 at the time of trial. The couple also owned several
vehicles, and had numerous investment and financial accounts. Additionally, the parties
owned several assets directly used by Husband in his career as a performing artist. This
included a 2004 Prevost XL-2 bus used for touring, valued at $180,000, a 2015 Wells
Cargo trailer valued at $9,500, and music equipment valued at $47,080. Lastly, the
parties’ expert presented evidence of a 2016 income tax overpayment in the amount of
$21,729. The value of all assets is not disputed by the parties.
After the trial concluded, the parties conferred and filed an agreed parenting plan
with the trial court which addressed all issues pertaining to child custody, parenting and
support. The trial court adopted the parenting plan by order on October 30, 2017. On
November 20, 2017, the trial court issued a Memorandum and Order granting Wife a
divorce on the grounds of inappropriate marital conduct and addressed the outstanding
issues of the division of martial property and spousal support.
-4-
The trial court first classified the parties’ separate property. It determined that a
$25,000 payment Husband made to Wife under the terms of the pre-nuptial agreement,
and all earnings on the investment of those funds, was Wife’s separate property. To the
extent Husband earned participation rights in the AFTRA pension plan prior to the
marriage, the trial court determined those rights were Husband’s separate property. The
trial court relied on the AFTRA statements to determine the amount of contributions
made during the marriage, but assigned no present or future value for the pension. The
trial court determined that all royalties and future income from Husband’s songs written
and recorded prior to the marriage were Husband’s separate property. For some unknown
reason, the parties’ joint expert did not perform a valuation on Husband’s premarital song
catalog. Accordingly, the trial court did not assign a value to Husband’s separate
premarital song catalogue; however, the trial court is not faulted for this because it can
only make determinations upon the evidence presented.3
To the extent JLD, Inc. was separate property at the time of the marriage, the trial
court determined it had been transmuted into marital property because no steps were
taken to preserve the company as separate property. It then concluded that
a mathematically equal division of the marital estate would not be
equitable. Wife is economically disadvantaged relative to Husband. He has
the far greater ability to accumulate capital assets than does Wife. Several
marital assets, such as the tour bus, music equipment, song catalogue, and
JLD, Inc. stock are critical to Husband’s ability to continue to pursue his
successful career as a performing musician.
Thus, the trial court divided the marital estate as follows:
To Husband To Wife
2013 Ford F150: $18,276 9435 Weatherly Dr. $860,000
2004 Prevost XL-2: $180,000 2007 Mercedes E350: $5,630
Sun Trust Inv. #3112: $258.43 2010 Jeep Wrangler: $17,523
Sun Trust Acct. #1521: $2,045 Sun Trust Chk.# 3116: $116
Sun Trust Acct. # 3868: $10,656 Chas. Schwab IRA $8,017
#1985:
Chas. Schwab # 3015: $40,038 Janus Funds #4335: $27,103
Chas. Schwab # 3018: $89,175 Buffalo Funds #7635: $32,042
Music/Song Catalogue: $13,600
AFTRA Pension: $11,607
3
Tenn. Code Ann. § 36-4-121(c) states that, “[i]n making equitable division of marital property, the court
shall consider all relevant factors including: . . . (6) The value of the separate property of each party[.]”
-5-
Loan Receivable: $3,550
2016 Income Tax $21,729
Overpayment:
Music Equipment: $47,080
2015 Wells Cargo Trailer: $9,500
JLD, Inc. stock: $48,000
Total property: $495,514.43 Total property: $950,431.00
The trial court then assigned the following debt to the parties:
To Husband To Wife
Loan for 2013 Ford F150 -$6,946 Marital residence -$246,744
mortgage
Sun Trust Visa #2081 -$59 Macy’s card -$19
BOA Visa #4547 -$14,546.93 Chase card #2629 -$1,559
Chase card #9908 -$15,155.11
Total debt: -$36,707.04 Total debt: -$248,322.00
This resulted in a net award of $458,807.39 to Husband, which amounted to forty
percent (40%) of the marital estate, and $702,109 to Wife, or sixty percent (60%) of the
marital estate.
Additionally, the trial court awarded Wife: (1) rehabilitative alimony in the
amount of $1,600 per month for twelve months to pay for additional vocational training;
(2) transitional alimony in the amount of $4,000 per month for 54 months to assist with
the mortgage payment; (3) alimony in futuro in the amount of $2,000 per month
beginning upon the payoff of the mortgage debt on the marital residence or August 1,
2022, whichever date is earlier, as well as an additional monthly payment of alimony in
futuro for Wife’s health insurance, not to exceed $1,000 per month; and (4) alimony in
solido in the amount of $49,306.66 for attorney’s fees plus an additional $24,151 in
unpaid expert witness fees from trial.
ISSUES
Both parties raise issues for us to consider on appeal. For his part, Husband
identifies two issues in his Statement of the Issues on page five of his brief, but his
Summary of the Argument does not fully comport with the issues stated by Husband.4
4
The two issues as stated by Husband in his brief read:
(continued…)
-6-
Having reviewed both briefs to assure that Wife is not ambushed by Husband’s failure to
fully comply with Tenn. R. App. P. 27(a)(4) and (7),5 Husband’s issues appear to be
those as stated in the summary of his argument which read:
I. The Trial Court failed to equitably divide the marital estate.
A. The Trial Court failed to consider the length of the
parties’ marriage when dividing the marital estate.
B. The Trial Court failed to consider the marital debt
when dividing the marital assets.
II. The Trial Court erred in awarding Wife all four types of alimony.
A. The Trial Court erred in awarding Wife both alimony
in futuro and rehabilitative alimony.
B. The Trial Court erred in awarding Wife transitional
alimony and rehabilitative alimony.
C. The Trial Court did not consider that the division of
the marital estate significantly favored Wife when
determining the amount of alimony to award.
III. The Trial Court’s division of the marital estate coupled with an
award of all four types of alimony rises to the level of punishment
towards Husband for his actions during the marriage.
1. Whether the Trial Court abused its discretion in awarding Wife sixty-four percent
(64%) of the marital estate as well as rehabilitative alimony, transitional alimony,
alimony in futuro, and alimony in solido.
2. Whether the Trial Court used the correct legal standard by not including the marital
debt when making an equitable division of the marital estate as a whole.
5
Tenn. R. App. P. 27(a) states, in pertinent part, the brief of the appellant shall contain:
(4) A statement of the issues presented for review:
...
(7) An argument, which may be preceded by a summary of argument, setting forth:
(A) the contentions of the appellant with respect to the issues presented, and
the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to
the record (which may be quoted verbatim) relied on . . ..
-7-
For her part, Wife contends the trial court abused its discretion when determining
the amount of alimony awarded. Both parties seek to recover their attorney’s fees on
appeal.
STANDARD OF REVIEW
“In all actions tried upon the facts without a jury, the court shall find the facts
specially and shall state separately its conclusions of law and direct the entry of the
appropriate judgment.” Tenn. R. Civ. P. 52.01. If the trial court makes the required
findings of fact, appellate courts review the trial court’s factual findings de novo upon the
record, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn.
2014) (citing Tenn. R. App. P. 13(d)). “For the evidence to preponderate against a trial
court’s finding of fact, it must support another finding of fact with greater convincing
effect.” State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Grp. Trust, 209 S.W.3d
595, 598–99 (Tenn. Ct. App. 2006) (citations omitted).
Requiring trial courts to make findings of fact and conclusions of law is
generally viewed by courts as serving three purposes. First, findings and
conclusions facilitate appellate review by affording a reviewing court a
clear understanding of the basis of a trial court’s decision. Second, findings
and conclusions also serve “to make definite precisely what is being
decided by the case in order to apply the doctrines of estoppel and res
judicata in future cases and promote confidence in the trial judge’s
decision-making.” A third function served by the requirement is “to evoke
care on the part of the trial judge in ascertaining and applying the facts.”
Indeed, by clearly expressing the reasons for its decision, the trial court
may well decrease the likelihood of an appeal.
Lovlace v. Copley, 418 S.W.3d 1, 34–35 (Tenn. 2013) (internal citations and footnotes
omitted).
While there is no bright-line test by which to assess the sufficiency of the trial
court’s factual findings, the general rule is that “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.” Id. at 35.
“Simply stating the trial court’s decision, without more, does not fulfill [the Rule 52.01]
mandate.” Gooding v. Gooding, 477 S.W.3d 774, 782 (Tenn. Ct. App. 2015)
(quoting Barnes v. Barnes, No. M2011–01824–COA–R3–CV, 2012 WL 5266382, at *8
(Tenn. Ct. App. Oct. 24, 2012)).
If the trial court fails to explain the factual basis for its decisions, the appellate
court “may conduct a de novo review of the record to determine where the preponderance
-8-
of the evidence lies or remand the case with instructions to make the requisite findings of
fact and conclusions of law and enter judgment accordingly.” Id. at 783 (citing Lovlace,
418 S.W.3d at 36; Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997); Nashville
Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App. 2005)).
Our review of a trial court’s determinations on issues of law is de novo, without
any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895
(Tenn. 2011).
ANALYSIS
I. DIVISION OF THE MARITAL ESTATE
Husband contends the trial court erred in the division of the marital estate in two
ways: (1) by failing to calculate the marital debt prior to determining the division of the
marital assets; and (2) by failing to adequately consider the length of the parties’ 17-year
marriage when dividing the marital estate.
A trial court’s division of marital property is a factual issue that we review de
novo upon the record with a presumption of correctness. Tenn. R. App. P. 13(d);
Dellinger v. Dellinger, 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997). Trial courts have
wide discretion in how they divide marital property, and therefore, marital property
divisions are given great weight on appeal. Id. (citing Wade v. Wade, 897 S.W.2d 702,
715 (Tenn. Ct. App. 1994); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App.
1987)). “The trial court’s decision on the distribution of marital property is presumed
correct unless the evidence preponderates otherwise.” Id. (citing Tenn. R. App. P. 13(d);
Wallace, 733 S.W.2d at 107). Our role as the appellate court “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.” Owens
v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007).
The division of a marital estate begins with the classification of the parties’
property as either separate or marital property. Larsen-Ball v. Ball, 301 S.W.3d 228, 231
(Tenn. 2010). (citing Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009)). This
is necessary because separate property is not part of the marital estate; therefore, a party’s
separate property is not subject to division. Id. (citing Cutsinger v. Cutsinger, 917 S.W.2d
238, 241 (Tenn. Ct. App. 1995)). “Thus, before equitably dividing the marital estate, the
trial court must identify all of the assets possessed by the divorcing parties as either
separate or marital.” Id. (citing Snodgrass, 295 S.W.3d at 246). After classifying the
divorcing parties’ assets as either separate or marital, the trial court must then divide the
marital estate equitably by weighing the relevant factors enumerated in Tenn. Code Ann.
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§ 36-4-121(c) without regard to fault on the part of either party. Id. (citing Tenn. Code
Ann. § 36-4-121(a)(1)).
A. The Marital Debt
Husband contends the trial court erred in the division of the marital estate by, inter
alia, failing to calculate the marital debt prior to determining the division of the marital
assets. Wife counters by insisting the marital debt was not only considered but that a
substantial majority of the marital debt was assigned to her. A review of the record
reveals that Wife is correct on this point.
We begin our review of this issue by noting that Husband contends on page 18 of
his brief that “Husband was assigned a majority of the marital debt in the amount of
$38,756.93, while Wife only received $1,578.00 in marital debt.” This is not only simply
incorrect, it is grossly inaccurate. The trial court assigned the debt of the mortgage on the
marital residence to Wife, with a balance of $246,744, and a Macy’s store card and Chase
card ending in #2629, the sum of which totaled $1,578. To Husband, the trial court
assigned the debt owed on his 2013 Ford F150 truck, with a balance of $6,946, a Sun
Trust Visa card ending in #2081 with a balance of $59, and a Bank of America Visa card
ending in #4547 carrying a balance of $14,546.93.6 Additionally, Husband was assigned
the debt on the Chase card ending in #9908, which had a balance of $15,155.11, and was
associated with business expenses for JLD, Inc. but also used by TT, with Husband’s
consent, for her personal expenses. Thus, Wife was assigned marital debt of
approximately $250,000 while Husband was assigned approximately only $37,000 in
debt. Considering this disparity, we find it disingenuous that Husband would contend that
the trial court failed to consider the marital debts before making an equitable division of
the marital estate.
Nevertheless, the total marital estate must be divided equitably, and in doing so
the allocation of marital debt is analyzed under Alford v. Alford, 120 S.W.3d, 810 (Tenn.
2003). Under Alford the trial courts are required to follow four factors as guidelines in an
equitable allocation of marital debt: “(1) the debt’s purpose; (2) which party incurred the
debt; (3) which party benefitted from incurring the debt; and (4) which party is best able
to repay the debt.” Id. at 813. The record indicates that the trial court correctly analyzed
the allocation of marital debt under the Alford factors; thus, the trial court did not fail to
consider the marital debt before dividing the marital estate.
6
This credit card had been used primarily by Wife for personal and family living expenses during
the marriage. After Husband filed for divorce, he instructed his financial managers to start making only
the minimum payments on this credit card balance, eventually “maxing out” its credit limit.
- 10 -
Before we leave this issue, and to fully address Husband’s contentions, we
acknowledge another of Husband’s arguments — that in addition to the marital debt
assigned to him, the trial court assigned Husband a significant portion of the remaining
mortgage payments in the form of 54 monthly payments of $4,000 as transitional alimony
totaling $216,000 and ordered him to pay Wife’s attorney’s fees in the amount of
$49,306.66. Husband argues the amount of debt the trial court allocated to Husband is
nearly three times greater than the amount of liquid assets he was awarded.
We find this contention misplaced because the foregoing reveals that Husband has
conflated “marital debt” with “alimony.” This is evident from Husband’s contention that
his alimony obligation of 54 payments of transitional alimony is an allocation of debt; it
is not. To the contrary, it is alimony, as identified by the trial court. Moreover, the trial
court’s final order makes it crystal clear that “Wife shall be responsible for the
satisfaction of the mortgage on the Marital Residence.” Thus, contrary to Husband’s
arguments and contentions, Husband was not assigned the debt on the marital residence,
Wife was assigned the bulk of the marital debt, and the trial court had considered the
marital debt in determining how to divide the marital estate.
B. Length of the Marriage
Husband contends the trial court erred in the division of the marital estate because
it “failed to consider the length of the parties’ marriage when dividing the parties’ marital
estate.” Wife contends Husband’s argument is erroneous because the trial court did
consider this factor. Nevertheless, in the event Husband is challenging the weight the trial
court placed on this factor, “Wife submits the trial correctly weighed this factor in the
context of all factors contained in Tenn. Code Ann § 36-4-121.”
The record clearly reveals that the trial court considered the length of the marriage
as a relevant factor in its determination. With that said, while Husband correctly notes
that a long-term marriage is a factor that favors an equal division of the marital estate,
Husband seeks to minimize the significance of other relevant factors. In Harrington v.
Harrington, 798 S.W.2d 244, 245 (Tenn. Ct. App. 1990), this court explained:
We have said in prior cases that ownership of the marital estate should be
presumed to be equal until proven otherwise. On the other hand, we have
also said that the statute does not mandate an equal division of the
marital estate but requires an equitable division considering the factors
in the statute. The statute specifically recognizes the contribution of a
homemaker to the accumulation of property from the earnings of the
working spouse.
(internal citations omitted) (emphasis added).
- 11 -
In Dellinger v. Dellinger, wherein we affirmed a 65% – 35% division of the
marital estate, we again acknowledged the legal principle that “[t]he long duration of this
marriage is a factor favoring an equal division of the marital property. 958 S.W. 2d at
781. However, other factors justify the trial court’s decision to award 65% of the marital
property to Wife.” Id. (internal citation omitted). As is the case before us, “Husband’s
earning potential far exceeds that of Wife.” Id. Moreover, as is the case here, the court
recognized that “[e]ven if Husband’s practice declines over the upcoming years, as he
predicts, his earnings will still far exceed Wife’s earnings.” Id. For these and other
reasons, this court affirmed a 65% – 35% division of the marital estate even though the
parties had been married for 30 years, which was 13 years longer than the marriage at
bar. Id. at 781-82.
Recognizing that the length of a marriage is one factor to consider in the division
of the marital estate, the record also reveals other relevant facts including that, at the time
of trial, Wife was 48 and Husband was 58 years old. Wife has rheumatoid arthritis,
whereas Husband is in relatively good health. Although Husband’s career peaked in the
mid-1990s, he remains a successful touring artist, grossing over $1.7 million in income in
2016, and owns a catalogue of songs that remain popular, some of which are regarded as
classics in the country music genre. Husband has a support obligation for Kylie, and he
financially supports an adult son from a previous marriage who is disabled. Wife, on the
other hand, had not worked outside the home for 17 years, and had only just begun
working at a bookstore part time after Husband filed for divorce. The trial court
determined that Husband’s earning power was significantly greater than Wife’s, and that
Husband had substantially greater ability to acquire capital assets in the future.
Conversely, the trial court determined that Wife had no marketable skills that would
qualify her to earn income substantially greater than minimum wage, and because it
would take all of her income to live, Wife’s ability to acquire capital assets in the future
was practically non-existent. Furthermore, Wife was the primary residential parent for
Kylie, who was in the eighth grade at the time of trial, and the trial court determined that
Wife had no independent means of providing a home for Kylie who had lived in the
marital residence her entire life. The trial court found this factor weighed in favor of
allowing Wife to remain in the marital home. The lifestyle the parties enjoyed during the
marriage exceeded Husband’s ability to earn income, which resulted in a gradual
dissipation of assets. Additionally, Husband dissipated assets in pursuit of his relationship
with TT.
In its order, the trial court addressed the length of the parties’ 17-year marriage as
one of many statutory factors in Tenn. Code Ann. § 36-4-121(c)(1) to consider in its
lengthy analysis. The trial court also concluded that the “economic disparity weigh[ed]
heavily in favor of distributing to Wife a greater share of the marital estate than
Husband.”
- 12 -
In reaching an equitable division, some factors may be significant while the
importance of others may be diminished depending on the unique facts of each case. See
Cronin-Wright v. Wright, 121 S.W.3d 673, 675 (Tenn. Ct. App. 2003). “The decision is
not a mechanical one and is not rendered inequitable because it is not precisely equal, or
because both parties did not receive a share of each piece of property.” Brown v. Brown,
913 S.W.2d 163, 168 (Tenn. Ct. App. 1994) (citations omitted). In considering the
relevant factors as the trial court obviously did, we find that the trial court’s division of
the marital estate is consistent with the statutory factors enumerated in Tenn. Code Ann.
§ 36-4-121(c) and is supported by the evidence. See Larsen-Ball, 301 S.W.3d at 231; see
also Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002)). Accordingly, we affirm
the trial court’s division of the marital estate.
II. ALIMONY
Husband challenges the multiple awards of alimony on various grounds. First, he
contends the trial court erred by awarding Wife “both Alimony in futuro and
Rehabilitative alimony.” Second, he contends it erred by awarding “Transitional Alimony
and Rehabilitative Alimony.” Third, he contends the trial court did not consider that the
division of the marital estate significantly favored Wife when determining the amount of
alimony to award. For her part, Wife contends the trial court erred in the amount of
alimony awarded to her based on the evidence of Wife’s need and Husband’s ability to
pay presented at trial.
A. Alimony In Futuro and Rehabilitative Alimony
Husband’s first contention is the trial court erred by awarding Wife Alimony in
futuro and Rehabilitative alimony. Wife insists the court properly exercised its discretion
by awarding both types of alimony.
Tennessee recognizes four types of spousal support: (1) rehabilitative alimony; (2)
transitional alimony; (3) alimony in solido; and (4) alimony in futuro. Mayfield v.
Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012) (citing Tenn. Code Ann. § 36-5-121(d)(1)).
A court may award rehabilitative alimony, alimony in futuro, transitional alimony, or
alimony in solido “or a combination of these, as provided in this subsection (d).” Tenn.
Code Ann. § 36-5-121(d)(1).
Rehabilitative alimony is a form of short-term support, see Gonsewski v.
Gonsewski, 350 S.W.3d 99, 110 (Tenn. 2011), that is “intended to assist an economically
disadvantaged spouse in acquiring additional education or training which will enable the
spouse to achieve a standard of living comparable to the standard of living that existed
during the marriage or the post-divorce standard of living expected to be available to the
other spouse.” Id. at 108 (citing Tenn. Code Ann. § 36-5-121(e)(1); Robertson, 76
S.W.3d at 340-41).
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Alimony in futuro is a form of long-term support, Mayfield, 395 S.W.3d at 115,
which is intended to provide long-term support until the death or remarriage of the
recipient. Gonsewski, 350 S.W.3d at 107 (citing Tenn. Code Ann. § 36-5-121(f)(1)).
When considered in the context of rehabilitation and/or rehabilitative alimony, Tenn.
Code Ann. § 36-5-121(d)(3) states: “Where there is relative economic disadvantage and
rehabilitation is not feasible, . . . the court may grant an order for payment of support
and maintenance on a long-term basis or until death or remarriage of the recipient, except
as otherwise provided in subdivision (f)(2)(B).” (Emphasis added).
The statutory scheme recognizes that, in some cases, only partial rehabilitation is
possible. Tenn. Code Ann. § 36-5-121(d)(4); Gorman v. Gorman, No. M2010-02620-
COA-R3-CV, 2011 WL 5599867, at *4–10 (Tenn. Ct. App. Nov. 16, 2011); Anderson v.
Anderson, No. M2005-02029-COA-R3-CV, 2007 WL 957186, at *5–6 (Tenn. Ct. App.
Mar. 29, 2007). Moreover, Tenn. Code Ann. § 36-5-121(d)(4) expressly authorizes a
court to award alimony in futuro “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.” Therefore, the trial court was
authorized to award Wife both alimony in futuro and rehabilitative alimony, provided it
found that she could be “only partially rehabilitated.” Id.; see also Lunn v. Lunn, No.
E2014-00865-COA-R3-CV, 2015 WL 4187344, at *11 (Tenn. Ct. App. June 29, 2015)
(holding that the spouse could be partially rehabilitated and was entitled to receive both
alimony in futuro and rehabilitative alimony).
Husband insists Wife is precluded from receiving alimony in futuro because “the
trial court found that Wife’s rehabilitation is feasible.” In his brief, Husband cites to page
266 of the record as the factual basis for this statement; however, the trial court did not
find that Wife could achieve an earning capacity that would permit her standard of living
after the divorce to be reasonably comparable to that enjoyed during the marriage, or to
the post-divorce standard of living expected to be available to Husband. Tenn. Code Ann.
§ 36-5-121(d)(2). To the contrary, the trial court made the following findings on pages
266 and 267 that are relevant to this issue:
Wife is young enough to be a productive member of the work force. She
has demonstrated an admirable work ethic and has realistic ambitions for
improving her ability to earn income. Nevertheless, during the marriage,
the Parties mutually organized their lives in a structure whereby Wife was
out of the work place for over a decade and devoted herself to being the
primary care giver for their child. Consequently, Wife has been entirely
dependent on Husband to provide her with the economic support she
needed for herself and Kylie. From all of the foregoing, the Court
concludes Wife needs rehabilitative, transitional and permanent alimony[.]
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Also relevant to whether Wife could be partially or fully rehabilitated are the trial
court’s findings that read:
Wife is 48 years of age. . . . Wife has been diagnosed with rheumatoid
arthritis for which she takes prescription medication under the supervision
of a medical doctor.
...
Husband’s earning capacity is far greater than Wife’s. In 2016, the Parties’
joint federal income tax return (Ex. 36) reported gross income from all
sources in the amount of $1.722 million. Wife’s individual contribution
to this total amount was roughly $600. Husband earned W-2 income in
2016 in the amount of $393,027. He reported business income of $63,492
and income from royalty payments of $4,419. The 2016 joint return
reports gross income of $459,242, adjusted gross income of $440,866
and taxable income of $421,774. Wife is currently employed part-time
at a retail book store where she makes, on average, $1,256 per month.
(Emphasis added) (footnotes omitted).
Based on the foregoing, and the entirety of the trial court’s findings, we find no
support for Husband’s assertion that the trial court found that it was feasible for Wife to
be rehabilitated to the extent that she could achieve an earning capacity that will permit
her standard of living after the divorce to be reasonably comparable to the standard of
living enjoyed during the marriage, or to the post-divorce standard of living expected to
be available to Husband. See Tenn. Code Ann. § 36-5-121(d)(2).
B. Transitional Alimony and Rehabilitative Alimony
Husband contends the trial court erred by awarding transitional alimony and
rehabilitative alimony. Wife argues the trial court had the discretion to award both. We
have determined that Husband is correct on this issue.
Wife relies on Tenn. Code Ann. § 36-5-121(d)(1) which states, “The court may
award rehabilitative alimony, alimony in futuro, also known as periodic alimony,
transitional alimony, or alimony in solido, also known as lump sum alimony or a
combination of these, as provided in this subsection (d).” (Emphasis added). However,
as the statute expressly provides, the discretion to award “a combination of these” is
subject to “subsection (d)” which states that “[t]ransitional alimony is awarded when the
court finds that rehabilitation is not necessary, but the economically disadvantaged
spouse needs assistance to adjust to the economic consequences of a divorce, legal
separation or other proceeding where spousal support may be awarded, such as a petition
for an order of protection.” Tenn. Code Ann. § 36-5-121(d)(4) (Emphasis added).
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The differing roles of these two distinct categories of support has been discussed
in detail by our Supreme Court as follows:
The fourth category of support, transitional alimony, is appropriate
when a court finds that rehabilitation is not required but that the
economically disadvantaged spouse needs financial assistance in
adjusting to the economic consequences of the divorce. Simply put, this
type of alimony “aid[s] the person in the transition to the status of a single
person.” In contrast to rehabilitative alimony, which is designed to increase
an economically disadvantaged spouse’s capacity for self-sufficiency,
transitional alimony is designed to aid a spouse who already possesses the
capacity for self-sufficiency but needs financial assistance in adjusting to
the economic consequences of establishing and maintaining a household
without the benefit of the other spouse’s income.
Gonsewski, 350 S.W.3d at 109 (internal citations omitted) (emphasis added).
Furthermore, in the case of Lunn v. Lunn where the wife’s ability to achieve partial
rehabilitation was not disputed, this court opined:
[T]he award of rehabilitative alimony is proper. We conclude, however,
that it is appropriate to modify the transitional alimony award to an award
of alimony in futuro. As previously explained, transitional alimony
should be awarded where rehabilitation is not necessary. Tenn. Code
Ann. § 36–5–121(d)(4). If, as here, the disadvantaged spouse can be only
partially rehabilitated, an award of alimony in futuro may be granted in
addition to rehabilitative alimony. Tenn. Code Ann. § 36–5–121(d)(4).
Having determined that the trial court correctly found that Wife would
experience an ongoing need for alimony beyond the period of
rehabilitation, we conclude alimony in futuro would be the more
appropriate form of this award. We therefore modify the trial court’s
judgment accordingly.
Lunn, 2015 WL 4187344, at *11 (footnote omitted) (emphasis added).
For the foregoing reasons, we have determined that Wife may not receive both
transitional alimony and rehabilitative alimony, and we resolve this conflict in the
following section.
C. Rehabilitative Alimony
The trial court awarded Wife rehabilitative alimony in the amount of $1,600 per
month for twelve months, for a total of $19,200, with the intent that this support would
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pay for cosmetology school so that Wife could pursue a new career as a professional
makeup artist. However, Wife did not request rehabilitative alimony. Moreover, Wife’s
attorney specifically argued she could not be rehabilitated. In speaking candidly to the
trial court, Wife’s attorney stated he did not “think this [was] a case for rehabilitative
alimony when we have a woman [who is] 48 years old, with work expectancy of 14
years, that she can be rehabilitated to be able to have the lifestyle that she has had with
[Husband] and has enjoyed that income.”
As previously discussed, rehabilitative alimony is “intended to assist an
economically disadvantaged spouse in acquiring additional education or training which
will enable the spouse to achieve a standard of living comparable to the standard of living
that existed during the marriage or the post-divorce standard of living expected to be
available to the other spouse.” Gonsewski, 350 S.W.3d at 108 (citing Tenn. Code Ann. §
36-5-121(e)(1)). The statute also now recognizes that, in some cases, only partial
rehabilitation is possible. Tenn. Code Ann. § 36–5–121(d)(4); Gorman, 2011 WL
5599867, at *4–10; Anderson, 2007 WL 957186, at *5.
During Wife’s cross examination at trial, she was asked about her previous part-
time job as a dog groomer. Wife testified that she was no longer able to work as a dog
groomer because her rheumatoid arthritis prevented her from being able to stand for long
periods of time and hold things with her hands. After testifying about her current part-
time job at a bookstore, Wife was then asked if she had considered any further training or
education to help her re-enter the workforce fulltime. Wife responded that she was
interested in going to cosmetology school to become a professional makeup artist, and
that she believed her contacts within the music industry were sufficient to help her break
into the field. However, the evidence suggests that these were mere hopes and dreams,
and not a realistic path for Wife’s rehabilitation. When asked numerous times about the
cosmetology school she was interested in attending, Wife admitted it had been “a while”
since she looked into it, she had no idea how much money she could expect to earn as a
professional makeup artist, she had no immediate plans to attend cosmetology school,
and was not sure if or when she would be able to attend due to her responsibilities in
caring for Kylie. After further questioning, Wife said she thought the school’s tuition was
$19,000, and she believed it was a six-month program, but no evidence was introduced
by either party documenting any specifics of the cosmetology program.7
The trial court’s decision to award rehabilitative alimony is a discretionary
decision which we review pursuant to the deferential abuse of discretion standard.
7
The evidence also reveals that Wife may not be physically able to perform the job
responsibilities of a professional makeup artist if it required her to stand on her feet and use her hands to
apply makeup for extended periods of time because Wife testified she could no longer be a dog groomer
due to her rheumatoid arthritis.
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Nevertheless, “[d]iscretionary decisions must take the applicable law and the relevant
facts into account.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010);
(citations omitted). Accordingly, as our Supreme Court has instructed, we review a
discretionary decision to determine “(1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court properly
identified and applied the most appropriate legal principles applicable to the decision, and
(3) whether the lower court’s decision was within the range of acceptable alternative
dispositions.” Id. (citations omitted). Moreover, we “review the underlying factual
findings using the preponderance of the evidence standard contained in Tenn. R. App. P.
13(d) and should review the lower court’s legal determinations de novo without any
presumption of correctness.” Id. at 525 (citations omitted).
Based on our review of the evidence relevant to this issue, we have concluded that
the evidence preponderates against the factual findings underlying the trial court’s
determination that rehabilitation by attending a cosmetology school is appropriate or
feasible. See id. at 525. Because the discretionary decision to award rehabilitative
alimony lacks an evidentiary foundation, see id. at 524, we vacate the award of
rehabilitative alimony.
D. The Amount of Alimony
Husband contends the trial court “did not consider that the division of the marital
estate significantly favored Wife when determining the amount of alimony to award.”
Wife disagrees with Husband’s reasoning, but submits that “the trial court abused its
discretion when determining the amount of alimony awarded.” Simply put, Husband
contends Wife received too much alimony, and Wife contends she did not receive
enough.
At trial, Wife presented a documented need of $7,500 per month in spousal
support. Other than Husband challenging a $250 monthly payment of attorney’s fees,
Wife’s expenses were received into evidence without dispute, and the trial court made no
findings against these figures. We have set aside the award of rehabilitative alimony;
thus, the three categories of alimony at issue are transitional, in futuro, and in solido. The
trial court awarded Wife transitional alimony in the amount of $4,000 per month for a
maximum of 54 months to assist with the mortgage payment and alimony in futuro in the
amount of $2,000 per month beginning upon the payoff of the mortgage debt on the
marital residence or August 1, 2022, whichever date is earlier, as well as an additional
monthly payment of alimony in futuro for Wife’s health insurance, not to exceed $1,000
per month. Additionally, the court awarded Wife alimony in solido for attorney’s fees in
the amount of $49,306.66 and for expert witness fees in the amount of $24,151.
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When determining whether an award of alimony and the “nature, amount, length
of term, and manner of payment” is appropriate, courts are required to consider the
following factors set forth in Tenn. Code Ann. § 36-5-121(i):
(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.
Of these twelve factors, the two most important factors to consider are the disadvantaged
spouse’s need and the obligor spouse’s ability to pay. Gonsewski, 350 S.W.3d at 110.
1. The Amount of Alimony in futuro and Transitional Alimony
Husband’s challenge to the amount of alimony awarded is based on a pigeon-hole
approach, focusing only on the division of the marital estate, while ignoring numerous
other factors that must be considered. By focusing only on the marital assets, Husband
attempts to overemphasize the significance of the division of the marital estate while
deemphasizing, if not eliminating from consideration, other factors that are relevant.
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Contrary to Husband’s wishes, we will follow the established protocol for determining
the appropriate amount of alimony to award.
Husband’s erroneous contention notwithstanding, we acknowledge that Wife
received approximately 60% of the marital estate; however, her assets are not income
producing, while the assets awarded to Husband were either income producing or
Husband will use them to earn income.8 Moreover, the trial court appropriately
considered the other relevant factors and made thorough findings of fact that support the
determination that Wife is economically disadvantaged. See Tenn. R. Civ. P. 52.01 (“In
all actions tried upon the facts without a jury, the court shall find the facts specially and
shall state separately its conclusions of law and direct the entry of the appropriate
judgment.”).
However, in setting the amount of alimony to award for both alimony in futuro
and transitional alimony, it is clear that the trial court erroneously considered
“speculative income” in determining Husband’s ability to pay alimony. This is evident
from the Memorandum and Order wherein the trial court stated that Husband’s music
career had already peaked, and
[a]t some unknowable point in the future, Husband will no longer be
able to endure the rigors of live performance tours. The Court must take
into account this ebb in Husband’s ability to generate revenue and not set
alimony in futuro at a level greater than Husband’s predictable ability to
sustain payment of such support.
(Emphasis added).
Considering what might happen to Husband’s income at some unknowable point
in the future conflicts with the legal principle that an award of alimony “must be based on
the factors known at the time of the hearing.” Ford v. Ford, 952 S.W.2d 824, 829–30
(Tenn. Ct. App. 1996). In the case of Mimms v. Mimms, we determined that the trial court
applied an incorrect standard when it essentially took judicial notice of its perception that
the husband was a nationally-known music business attorney and set the husband’s
alimony based on his potential to earn substantially more income. 234 S.W.3d 634, 637–
38 (Tenn. Ct. App. 2007). Accordingly, in the case at bar, the trial court erred by basing
Husband’s present ability to pay alimony on what might happen at “some unknowable
point in the future.” See id.
8
For example, the tour bus and music equipment will aid Husband in his concert performances,
which are a significant source of his income. Also, Husband was awarded all royalties and future income
from his music catalog and recordings, which will produce income without any additional efforts by
Husband.
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By considering that Husband would have less income in the future, the trial court
artificially deflated Husband’s present ability to pay alimony, which is one of the two
most important factors to consider in setting the amount of alimony. See Gonsewski, 350
S.W.3d at 110. Moreover, by considering “speculative income” as a factor in setting the
amount of alimony, the trial court failed to apply “the most appropriate legal principles
applicable to the decision.” Lee Med., Inc., 312 S.W.3d at 524. Accordingly, the
discretionary decision was not based on one of the most important factors to consider in
setting the amount of alimony. See Gonsewski, 350 S.W.3d at 110.
Therefore, we reverse the amount of the awards for alimony in futuro and
transitional alimony and remand to the trial court to make additional findings of fact and
conclusions of law to determine, among other relevant factors, Wife’s need and
Husband’s ability to pay based upon the “factors known at the time of the hearing,” Ford,
952 S.W.2d at 829-30, and enter judgment accordingly. The foregoing notwithstanding,
unless and until the trial court enters an order or orders revising the amounts, the amount
of the awards shall remain in effect.
2. The Amount of Alimony in solido.
As for the award to Wife of alimony in solido in the amount of $49,306.66 for
attorney’s fees plus and an additional $24,151 to cover the parties’ joint expert witness
fees from trial, we begin by noting that alimony in solido is a form of long-term support
“typically awarded to adjust the distribution of the marital estate.” Mayfield, 395 S.W.3d
at 115 (citing Gonsewski, 350 S.W.3d at 108). “Alimony in solido may be awarded in
lieu of or in addition to any other alimony award, in order to provide support, including
attorney fees, where appropriate.” Tenn. Code Ann. § 36–5–121(d)(5). It is not
modifiable and does not terminate upon the death or remarriage of the recipient.
Mayfield, 395 S.W.3d at 115.
With respect to an award of attorney’s fees in divorce cases, our Supreme Court
has stated:
It is well-settled that an award of attorney’s fees in a divorce case
constitutes alimony in solido. The decision whether to award attorney’s
fees is within the sound discretion of the trial court. As with any alimony
award, in deciding whether to award attorney’s fees as alimony in solido,
the trial court should consider the factors enumerated in Tennessee Code
Annotated section 36–5–121(i). A spouse with adequate property and
income is not entitled to an award of alimony to pay attorney’s fees and
expenses. Such awards are appropriate only when the spouse seeking them
lacks sufficient funds to pay his or her own legal expenses or the spouse
would be required to deplete his or her resources in order to pay them.
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Thus, where the spouse seeking such an award has demonstrated that he or
she is financially unable to procure counsel, and where the other spouse has
the ability to pay, the court may properly grant an award of attorney’s fees
as alimony.
Gonsewski, 350 S.W.3d at 113 (citations omitted). Alimony in solido is also commonly
awarded in the form of discretionary costs and other litigation fees. See Andrews v.
Andrews, 344 S.W.3d 321, 340 (Tenn. Ct. App. 2010); see also Owens, 241 S.W.3d at
497. As with any award, the single most important factor in considering whether to award
alimony in solido is the need of the requesting spouse, and the ability of the other spouse
to pay. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001).
Although Wife was awarded a larger share of the marital estate, the bulk of what
she received consisted of the marital residence, which is not an income-producing asset.
Moreover, the trial court found that Husband had the ability to pay his attorney’s fees
whereas Wife did not, and without an award of alimony in solido, Wife would be forced
to sell the marital residence to pay for her attorney’s fees and expert witness expenses,
thereby undercutting the reason for awarding her the residence.
We agree with the trial court’s determinations of Wife’s need for alimony in
solido to pay these fees. We have also determined that the amount of attorney’s fees and
expert witness fees awarded were reasonable and necessary, given that the amount in
controversy involved a marital estate in excess of $1 million dollars and complex
valuation issues for a closely-held business entity and intangible, royalty-generating
intellectual property. Therefore, we affirm both awards of alimony in solido.
III. WHETHER THE AWARDS WERE PUNITIVE AGAINST HUSBAND
Husband contends the division of the marital estate coupled with an award of all
four types of alimony rises to the level of punishment towards Husband for his actions
during the marriage. We respectfully disagree.
The court is allowed to consider the parties’ relative fault when determining
spousal support, Tenn. Code Ann. § 36-5-121(i)(11); however, fault should not be
applied punitively. Tait v. Tait, 207 S.W.3d 270, 278 (Tenn. Ct. App. 2006). Moreover, a
court must “equitably divide, distribute or assign the marital property between the parties
without regard to marital fault in proportions as the court deems just.” Tenn. Code
Ann. § 36-4-121(a)(1) (emphasis added).
Here, Husband relies on statements by the trial court in its final order to support
his conclusion that the awards were punitive. For example, the trial court noted that
Husband “betray[ed] his marital obligations through sexual pursuit of other women”
while “Wife was trying to help Husband moderate his unhealthy behavior.” The court
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also stated, “The evidence shows that Husband made a conscious decision to discard his
existing marital relationship with the mother of his minor child, in order to pursue a new
relationship with a younger woman and her child.” Indeed, the trial court made these
statements, and the record fully supports these findings of fact; however, Husband has
failed to show that any of the awards were punitive. To the contrary, we have determined
that the trial court erred in Husband’s favor by setting alimony based on the speculation
that Husband’s income would diminish in the future. This is not consistent with the
allegation that the trial court’s awards were motivated by the intent to punish Husband.
Furthermore, the trial court’s complimenting Husband for being a doting father to Kylie
and financially supporting his adult son with special needs is inconsistent with a
motivation to punish.
Considering the foregoing and the entire record, we find no basis upon which to
conclude that the trial court’s division of the marital estate or the awards of alimony were
punitive in nature towards Husband, or that they constituted an abuse of discretion.
IV. ATTORNEY’S FEES
Both Husband and Wife seek to recover their attorney’s fees on appeal. Whether
to award attorney’s fees on appeal is within this court’s sole discretion. Wills v. City of
Memphis, 457 S.W.3d 30, 51 (Tenn. Ct. App. 2014) (citing Archer v. Archer, 907 S.W.2d
412, 419 (Tenn. Ct. App. 1995)). When considering a request for attorney’s fees, we will
consider “the requesting party’s ability to pay, the requesting party’s success on appeal,
whether the appeal was taken in good faith, and any other relevant equitable factors.”
Culbertson v. Culbertson, 455 S.W.3d 107, 158 (Tenn. Ct. App. 2014) (citing Moran v.
Willensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010)). After considering these factors,
we deny Husband’s request. However, because Wife is clearly the disadvantaged spouse
and, as the trial court found by awarding her attorney’s fees incurred in the trial court
proceedings, we find that Wife is entitled to recover the reasonable and necessary
attorney’s fees incurred on appeal. Accordingly, we remand this issue for the trial court to
make an award in the amount it deems appropriate.
IN CONCLUSION
The judgment of the trial court is affirmed in part, vacated in part, reversed in part,
and remanded for further proceedings consistent with this opinion. Costs of appeal are
assessed against the appellant, Joe Logan Diffie.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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