Ruby Diane Barron v. Bruce Joseph Barron

11/20/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 15, 2019 Session

RUBY DIANE BARRON V. BRUCE JOSEPH BARRON

Appeal from the Chancery Court for Hamilton County

No. 17-0585 Pamela Fleenor, Judge

___________________________________

No. E2018-02257-COA-R3-CV

___________________________________

Wife filed for divorce on the grounds of irreconcilable differences. The trial court granted

husband a divorce on the grounds of wife’s adultery and other inappropriate marital

conduct. Despite the many factors found by the trial court to be favorable to husband, the

court awarded husband only 43% of the net marital estate. It also awarded husband one

year of transitional alimony at $2,000 per month. We hold that the trial court erred in its

division of the net marital assets and in its determination as to the duration of the

transitional alimony awarded to husband. We modify the trial court’s judgment so as to

provide husband five years of transitional alimony. We hold that the Roth IRA is a

marital asset; it is awarded to husband and wife in equal share. Furthermore, we hold that

the FERS pension account is to be divided between the parties as set forth in this opinion.

As modified, the judgment of the trial court is affirmed.

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

Modified in Part; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J. and THOMAS R. FRIERSON, II, J., joined.

Jillyn O’Shaughnessy, Chattanooga, Tennessee, for the appellant, Bruce Joseph Barron.

John T. Rice, Chattanooga, Tennessee, for the appellee, Ruby Diane Barron.

OPINION

I.

In July 1991, husband and wife met, in Germany. At the time, husband worked as

a tour guide, and wife worked as a speech pathologist on a US military base. In

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December 1991, they were married; Husband was 36 years old and wife was 40. It was

both of their first marriage.

The parties live in Germany. Husband is now 62 years old and wife is 67.

Husband has a plural effusion of the left lung from cancer. He had chemotherapy from

2015-2016, and hernia surgery in 2018. As a result, husband can only work a job that is

sedentary. Wife is in good health, and continues to work as a speech therapist for the U.S.

Department of Defense school system, in Germany. Her income is listed as $11,893.52

per month.

The parties have a biological son that was born in 1993. They later adopted a

second son that had developmental delays. After the adoption of their second child,

husband became a homemaker. Husband has not been employed outside of the home

since 2005. Throughout the marriage, wife traveled extensively without the children and

husband. Husband was often left home alone to care for them.

On August 8, 2017, wife filed a complaint for absolute divorce on the ground of

irreconcilable differences. On November 21, 2017, husband filed his answer and

counterclaim; he alleged that wife had committed adultery and other inappropriate

marital conduct. Husband stated in his response to wife’s request for interrogatories that:

My wife is rarely at home on US holidays or school vacation

time. She has regularly taken overnight trips and extensive

vacations without our family. This has been going on for

many years. US holidays and school vacation times were

normally the busy times when I would’ve worked as a tour

and travel guide for the US forces in Europe. I was unable to

work when she was gone because we had a young child to

care for. This was starting [sic] when my wife went on a trip

to Russia by herself in April Easter break of 1995.

My wife was also president of the overseas speech and

hearing association which required her to travel on frequent

overnight trips, sometimes from Germany back to the US.

Some of the more recent trips she has taken, while I was with

the kids at home, are as follows:

Oct 6-9 2017. Milan Italy

Sept 15-17 Somewhere in Germany

Sept 1-4 Belgium

July 6-Aug 12 Florida, Tn. (Against my will,

She took my youngest son went with her.)

May 26-29 Mediterranean island of Cypress

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April 7-16 Greek island cruise

Nov 23-27 2016 Thanksgiving Barcelona,

Spain

Oct 7-10 Stockholm, Sweden

Sept 2-5 Vienna Austria

July and Aug tour of China

April 7-9 Croatia Slovenia

Fall of 2015 Eastern Mediterranean cruise

June-Aug Florida, Ms

April Baltic states Latvia, Lithuania, Estonia

2014 June-August Cambodia, China and S

Korea

This is only a partial list, there are many more vacations she

has taken without our family. Diane has had extramarital

relationships which are not appropriate or conducive to

married family life. She continues to this day to be in a casual

relationship with a man whom she met on the internet, going

on dates with him to plays in Frankfurt, taking him shopping

in the military PX, which is illegal because it is a violation on

German tax laws. She puts her job and our family in jeopardy

by doing this. It’s embarrassing and humiliating to me

because my neighbors have informed that this man was in our

house when I wasn’t there. She continually had him at our

house when I wasn’t home. I know this because my kids

always told me about it. I believe it hurt them emotionally.

I initiated marital counseling several years ago. The counselor

told Diane she should stop seeing this man but Diane refused

and quit counseling instead.

She also continues in an inappropriate relationship with an

old boyfriend who used to write her letters of affection and

address them to Diane’s friend so that I wouldn’t find them in

our mailbox. This goes back to the days before email. She

saved the letters and I discovered them when unpacking a

move from Darmstadt to Wiesbaden Germany for her job.

The messages were left open on our family computer

indicating that they regularly planned on meeting each other.

He regularly traveled from Atlanta to Germany on duty

assignment with the US army. He was with my wife on the

third weekend in February, 1997 while I was working on a

tour at the time. I know this because he said it in the letter. He

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also said how affectionate and sexy she was. Diane continues

to correspond back with him to this day. I didn’t feel too good

about it. It had become apparent to me that Diane cared more

about the affection of other men than her husband.

My wife is moody, changing her mind frequently. This is the

third time divorce has been filed. The other two were

withdrawn. One was in Germany and was withdrawn because

she did not want to divide assets. The other in Tennessee

because attorney was someone she told me that she

previously had sexual relations with and that she continues to

visit and be friends with today. My wife insisted on having

invitro-fertilization done by a fertility specialist until she was

49 years old, even though the doctor told her that infertility

was not her problem, advanced age was. This included having

2 egg donors which is not legal in Germany. We had to go to

Belgium for this. This was at an expense of more than

$60,000. She finally agreed that adoption was the best option.

We were only allowed to adopt because I was younger than

50 at the time and told the judge and stated in our dossier that

I would be able to stay at home and care for the baby while

she had a professional job that would provide a good income

for our family. This worked well for our family but because

the nature of my work, being out of the country for days at a

time, I was no longer able to work this job. When my

youngest son was old enough for school, I worked at the

education center on the military base but lost this job when

the base closed and Diane transferred and moved our family

to Wiesbaden for her new job. We purchased a house together

which my name was on the loan and has been paid for with

the US government employee overseas dependent spouse and

family housing allowance. My name was on the mortgage

because otherwise, the bank would not finance it. Shortly

after we moved into the new house, Diane closed joint

accounts and credit card and withheld money even though she

was getting a tax free spouse and family housing and overseas

cost of living allowance. On a Facebook post, she told her

boyfriend in Pell City Al that she intended on doing this. This

has continued to this day, she refuses any support. This

includes medical and dental care because I did not have the

money to pay up front. When I was diagnosed with cancer

and a grade 4 tumor requiring surgery and several months of

chemo therapy, my wife left for a vacation in Florida for the

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summer leaving me no money for the chemotherapy

medication. This was even though we had insurance that

would reimburse 90% of the cost. I had to [borrow] money.

She has continued to tell me to move even though I am

unable to and this has put tremendous stress on me. Legally, I

can only stay in Germany with my son as a dependent spouse

on US government orders which I have been for over 25

years. My wife has refused intimacy for a long time telling

me that she is intimate with someone better able to please her.

I believe she says this to me only to be hurtful. This is only a

partial description of behaviors which to me are inconsistent

with a healthy marriage.

On December 13, 2017, wife filed an affidavit stating that the oldest son had

graduated from the University of Tennessee. The youngest son graduated from high

school, in Germany, in 2018, and has been accepted under the Tennessee Promise

Program, which grants students free college tuition. Therefore, both children have

reached the age of majority.

On May 3, 2018, wife filed a motion to set the matter for trial. On May 24, 2018,

the trial court entered an order stating that the parties had agreed to set the trial for

August 8, 2018 as to all issues. Wife then filed for partial summary judgment; she

requested that the parties’ home (referred to as Hessloch Folio 813, in Wiesbaden,

Germany) be deemed her separate property. Wife argued that she paid the mortgage,

upkeep, and other expenses for the home, and therefore it should be her separate

property. She argued that husband has made “no contribution whatsoever to the

property.”

Husband opposed wife’s motion for partial summary judgment. He argued that the

house was acquired, on July 8, 2010, while the parties were married. He argued that

Tennessee law distinguishing marital property from separate

property is clear. [Tenn. Code Ann.] § 36-4-121(b)(1)(A)

describes “marital property” as “all real and personal

property, both tangible and intangible, acquired by either or

both spouses during the course of the marriage up to the date

of the final divorce hearing and owned by either or both

spouses as of the date of filing of a complaint for divorce…”

He argued that the house does not qualify as separate property. He argued that, in

addition to non-monetary contributions recognized under law, wife produced documents

that contained financial statements regarding the home dated in 2010 addressed to

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husband alone, and a loan statement in both husband and wife’s names. In addition,

husband argued that

As for [wife’s] claim that she is the only one who has

contributed to the Home, the fact is also disputed.

Contributions to the marital property is a factor that the Court

may consider in dividing the marital asset, but not in

determining whether the asset is a separate asset when he

does not meet the very definition of separate property, such as

the Home in this case.

Tennessee recognizes that a spouse’s contributions to marital

property are not limited to financial contributions. [Tenn.

Code Ann.] § 36-4-121(b)(1)(D) states that a “substantial

contribution” by a spouse to marital property may include

“the direct or indirect contribution of a spouse as homemaker,

wage earner, parent or family financial manager, together

with such other factors as the court having jurisdiction thereof

may determine.” Thus, even if [wife] paid the mortgage on

the Home, [wife] was not the sole contributor to the Home

and is not entitled to separate property rights to the Home at

the exclusion of the [husband].

The court denied wife’s motion. It held that wife failed to allege any facts demonstrating

that the home should be considered separate property. The court further stated that even if

the burden of production had shifted to husband, he presented a genuine issue of material

fact as to whether the home should be considered separate or marital property. The court

noted that husband had alleged he contributed financially to the home by taking out a

loan of 285,000 Euros for the purchase, and other substantial contributions as a

homemaker, parent, and otherwise. The court held that husband “presented evidence from

which the factfinder could determine that [husband] ‘substantially contributed’ to the

home, within the meaning of Tennessee law, and therefore, there is a genuine issue of

material fact in dispute.”

At the outset of the trial, the trial court asked if there were any preliminary

motions or announcements. Wife’s counsel stated “no.” Both parties waived making an

opening statement.

Husband and wife were the only witnesses that testified at trial; the court took the

matter under advisement. On September 28, 2018, the court entered its memorandum

opinion and decree. The court held that husband was the credible witness. The court held

that, when the parties moved into their house in Wiesbaden, wife took the master

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bedroom and husband had to purchase a separate bed and sleep in the basement. Wife

locked the master bedroom door beginning in January 2018.

The court held that wife committed adultery, made disparaging remarks toward

husband, and did not help him with his cancer treatment. Accordingly, the court granted

husband a divorce on the grounds of wife’s adultery and inappropriate martial conduct.

The court held that wife has the greater ability for future acquisition of capital

assets and income. It held that wife had dissipated marital assets. After the divorce was

filed, wife withdrew $9,500, on September 21, 2017; $9,800, on September 22, 2017;

$5,000, on September 25, 2017; and $8,600, on September 26, 2017 – for a total of

$32,900 – from her account at Community Bank. The court held that the parties had a

joint mutual fund at Smith Barney to which both contributed; wife made numerous

withdrawals of $3,000 to $5,000 each from the account and closed it in 2015. In addition,

$4,600 is missing from the house; the court stated that “[t]his was next to the son’s

passport. Wife admitted taking the son’s passport but denied taking the money. The

[c]ourt finds it is more likely than not that [w]ife took this money.” The court also stated

that husband found $12,000 in the master bedroom with two withdrawal tickets dated

October 19, 2017 and October 24, 2017 (both after the divorce was filed).

The court held that wife receives a housing allowance each month. The utilities

and insurance are covered by the housing allowance. Wife makes $88,000 a year and

receives $54,890 in housing allowance that is not taxable. She also receives $500 a month

in cost-of-living-adjustment that is tax-free. She receives two paychecks a month, one for

$4,638.77 and one for $4,245.25. The court stated that wife based her request for the vast

majority of marital assets on the fact that she “paid for everything.” Wife had further

argued that “[h]usband was underemployed or chose not to work, and therefore did not

contribute to the marriage or the marital estate.” The court disagreed. The court

emphasized husband’s contributions to the household as a homemaker, while wife

worked, throughout its decree. It held that “[w]ife contributed to the marriage financially

and [h]usband contributed as house husband. Husband’s contributions as homemaker

contributed to the increased earning power of [w]ife.”

The court stated that it will be difficult for husband to find employment in

Germany, once the divorce is entered, due to an established hierarchy for obtaining US

government employment overseas. Because husband will not be able to obtain

employment in Germany, as he will no longer be a spouse of a government employee, he

can only remain for three months following the divorce. Husband will need to make an

intercontinental move to re-establish himself in the United States.

Ultimately, the court divided the marital assets, as follows:

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EQUITABLE DIVISION OF ASSETS AND €IABILITIES

IIUSBAND

ASSETS LIABILITIES

Thrift Savings $460,000 Starr card $800

Community National Medical bill 54,600

Account #3681602167 $65,000

Andrews FCU Visa S1,000

Naspa Bank 520,000

Andrews FCU SI0,300

NET $548,900

WIFE

ASSETS LIABILITIES

Marital residence 5720,000 Mortgage 5319;000

Timber Land $79,000 Loan S20,000

Andrews ICU $49,000

Naspa Sparkasse $30,000

RO I'H ERA $139,000

Cash removed by Wife $49,500 (32,900 + 12,0(10 + 4.600)

2004 Valvo 53,000

NET 5730,500

The net marital assets total $1,279,400. Husband’s award of $548,900 represents

approximately 43% of the total assets. Wife’s award of $730,500 represents

approximately 57% of the total assets. The court awarded each party its Lincoln Life

Insurance policy. The court stated that “[it] is aware that the property division is not

equal, but the [c]ourt determines that it is an equitable division, and the difference is a

factor in the alimony award…and in the award of attorney’s fees.” The court did not

clearly elucidate how its award was equitable in light of its factual findings.

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The court awarded husband transitional alimony of $2,000 per month for one year,

and directed wife to maintain husband’s health insurance until he reaches the age of 65.

The court stated that the alimony was awarded so that husband can “come to America to

establish and maintain a household and to adjust to the economic consequences of the

divorce.” The court declined to grant a longer period of alimony, because “[w]ife is 67

years old and has already passed retirement age.”

The court also held that wife paid her attorney’s fees with marital assets. “The

[c]ourt’s division of assets provided [h]usband with some funds but those assets are to

provide long-term security.” Accordingly, the court awarded attorney’s fees as alimony

in solido to husband; the court’s division of assets resulted in wife receiving $181,600

more, and the court stated that the $24,000 in alimony in solido “can be used to adjust the

distribution of marital assets.”

On October 16, 2018, husband filed a motion to alter or amend requesting one half

of the FERS Pension Account, a longer period of alimony, and a more equitable share of

the marital assets and liabilities. On October 23, 2018, wife filed a motion to alter or

amend or make additional fact findings with a brief in support. Wife argued that the court

had improperly prevented her from conducting necessary discovery. She argued that the

court should have given her credit for having insurance for husband through her job,

instead of holding that she failed to help husband with his cancer treatment. Furthermore,

she again argued that husband is not disadvantaged, and that she is entitled to the accrued

marital assets, because she was the primary wage earner. Both wife and husband filed

responses.

On November 6, 2018, the court entered an order clarifying that wife should

receive $730,500 of net assets in addition to her FERS retirement. In addition, the court

entered two orders denying the motions to alter or amend. Essentially, the court held that

the parties were attempting to relitigate matters that had already been adjudicated, and

that the division of assets must be equitable, but not necessarily equal.

On October 16, 2018, husband had filed an affidavit of attorney’s fees showing

fees and expenses totaling $18,243. On November 7, 2018, husband filed a motion

requesting that wife pay his attorney’s fees. The court awarded husband his attorney’s

fees by order dated November 20, 2018, in the amount of $18,243. On December 20,

2018, husband timely appealed.

II.

Husband asks this Court to consider:

Whether the trial court erred in distributing the marital assets

and liabilities of the parties.

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Whether the trial court erred by awarding only one year of

transitional alimony.

Whether husband should be awarded his attorney’s fees on

appeal.

Wife asks this Court to consider:

Whether the trial court erred by failing to require

supplemental discovery.

Whether the trial court erred in finding that wife committed

adultery and inappropriate marital conduct.

III.

We review a non-jury case de novo upon the record, with a presumption of

correctness as to the findings of fact unless the preponderance of the evidence is

otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.

2000). We review questions of law, including those of statutory construction, de

novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v.

Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins,

224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding

witness credibility are entitled to great weight on appeal and shall not be disturbed absent

clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417,

426 (Tenn. 2011).

IV.

As a preliminary matter, wife argues that the trial court erred by failing to require

supplemental discovery. She argues that this hindered her ability to adequately prepare

for trial. The record indicates that, on May 3, 2018, wife filed a motion to set the matter

for trial. On May 24, 2018, the trial court entered an order stating that the parties had

agreed to set the trial for August 8, 2018 as to all issues. At trial, when asked by the

court, wife stated that there were no preliminary matters to be considered by the court.

Wife raised the discovery issue to the trial court in her motion to alter or amend. The

court held that

[a]dditionally as grounds Plaintiff seeks to raise a discovery

issue which the Court determines is also improper for a

motion filed pursuant to Rules 52 and 59. Further Plaintiff

inaccurately asserts this Court “sustained Defendant’s Motion

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to Quash a subpoena for Defendant’s testimony.” However,

this Court did NOT quash the Defendant’s deposition

subpoena. Rather the Court, by Order entered March 28,

2018, merely ruled that Defendant did not have to produce

“certain documents” at his deposition. Additionally, the

Court notes that on May 3, 2018, Plaintiff was the party that

moved to set the case for trial. Further, the case was set by

Order entered May 29, 2018 by agreement of the Parties.

Plaintiff never filed a motion to continue in order to depose

Defendant. If Plaintiff failed to depose Defendant, that was

her choice.

Accordingly the Plaintiff’s motion to alter or amend the Final

Decree entered September 28, 2018 is DENIED in its

entirety.

(Emphasis in original).

Based on the foregoing, the record does not indicate that wife’s ability to prepare

for trial was hindered due to a “lack of reasonable discovery.” Instead, it indicates that

wife chose to set this matter for trial, and later consented to the trial date. The decision to

proceed to trial with the information then obtained was wife’s prerogative. Accordingly,

we hold that the trial court did not err in its holding on this issue.

V.

A.

On appeal, wife argues that husband failed to sufficiently specify wife’s adulterous

and inappropriate marital conduct sufficient to grant the divorce on these grounds. We

disagree. The trial court heard extensive testimony on this issue, and found husband to be

the credible witness. As noted elsewhere in this opinion, the trial court’s determinations

regarding witness credibility are entitled to great weight on appeal and shall not be

disturbed absent clear and convincing evidence to the contrary. See Morrison v. Allen,

338 S.W.3d 417, 426 (Tenn. 2011). Husband testified that:

Q: Have there been times when you did not seek medical

care because you didn’t have the money upfront?

A: Very regretfully, yes.

Q: Did you go to your wife to request it?

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A: Yes.

Q: What was her response?

A: You come up with the deductible. That’s your

problem.

Q: How recently was that?

A: As recently as the past month, but I’ve heard it often

over the last ten years.

* * *

Q: What is her treatment of you?

A: Disrespectful at best.

Q: How does she treat you in front of other couples?

A: She humiliates me.

Q: Give the Court an example of how she has done that.

A: There are many examples. Years ago when we were

visiting friends and family and the friends would ask

how is your German coming along; I said, not bad, it’s

pretty good. She said, he never understands anything.

He can’t translate anything. He doesn’t know it that

well. It’s little putdowns like that. We were invited to

my neighbor’s house for a New Year’s Eve dinner. In

Germany New Year’s is almost like Thanksgiving.

They say, what do you wish for in the new year,

Diane? She would say, for a rich German man.

Everyone laughs it off, but it’s kind of hurtful and

disrespectful. She says it in front of me. There have

been other times as well.

* * *

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Q: Okay. Well, can you think of any other specific

examples of things that Mrs. Barron would say to you

in front of your children?

A: Mostly demeaning things that degrade my character or

worth in the household.

Q: I’m trying to ask for the words she used. If there’s any

profanities, you spell it or you just say the first letter,

whatever the Court -- the first letter is sufficient.

A: It’s difficult to say. Well, when I inquired about

marital intimacy or our life in the bedroom, she said

she did not want to have relations with me. She said

you have no D-I-C-K. I’m F’g someone with a D-I-C-

K. You have no D-I-C-K. That was one I remember

that was quite hurtful.

Q: When did you go through chemotherapy treatment?

A: In 2015 and 2016.

Q: Tell the Court Mrs. Barron’s involvement in that

treatment and your recovery.

A: Well, there was almost no involvement. She did go

with me to the pharmacy one day and use the credit

card to pick up the drugs. That was at -- after the

cancer surgery, I was in -- it was complicated, so I was

in the hospital for three weeks. We had to meet with

the oncologist, and they asked that a family member be

there to discuss the treatment, to have someone with

you, and we waited for over an hour. She said she

would come, but she didn’t come because she was

angry with me for some reason, so I went back the

next day and just did it on my own.

Then she took a vacation that summer, and she left. I

didn’t have access to a credit card or money at that

time to acquire the medication necessary. So I asked

my son for the credit card that he had access to, and I

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was able to get the medication with that, Xeloda it was

called.

Q: Is this before or after you had the proceeds from the

Darmstadt house?

A: It was before. That would have been in July of -- no.

I'm sorry -- yes, July of ‘15.

* * *

Q: Did you ask Mrs. Barron for financial assistance for

your medical needs?

A: Yes, I did.

Q: What was her response?

A: No, she’s leaving on vacation. She left and took my

youngest son with her on that trip.

Husband testified regarding wife’s insensitivity to his emotional and health needs, to how

she lacked an interest in his wellbeing, and how she regularly engaged in demeaning

speech. In his testimony at trial, husband specified instances of wife’s adulterous, aloof,

and demeaning conduct, which the trial court found to be credible. The record indicates

that wife shut husband out of her life to the extent that she put a literal lock on her

bedroom door. Wife did not address the issue of adultery at trial.

The trial judge saw the witnesses and heard them testify, and had the opportunity,

denied to this Court, of observing their manner and demeanor while testifying. As this

Court has stated, “the finding of the [trial judge] is entitled to great weight when [she]

saw the witnesses face to face and heard them testify [] and this is peculiarly true where

[] the determination of the issues of fact depends, in large measure, upon the comparative

credibility of the two adversary parties to the suit.” See Troutt v. Troutt, 35 Tenn. App.

617, 626, 250 S.W.2d 372, 376 (1952) (holding that the offense of adultery may be

proved by circumstances from which guilt may be reasonably inferred); see also Canning

v. Canning, 59 Tenn. App. 678, 685, 443 S.W.2d 502, 505 (1968) (holding that adultery

can be proven by circumstantial evidence; it is not necessary to have direct evidence of

the illicit intercourse). We hold that the evidence does not preponderate against the trial

court’s findings as to the grounds for divorce. We affirm the granting of a divorce on the

grounds of wife’s adultery and wife’s inappropriate marital conduct.

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B.

“Trial courts have broad discretion to determine whether spousal support is needed

and, if so, the appropriate type of alimony, amount, and duration.” Neamtu v. Neamtu,

2009 WL 152540, at *5 (Tenn. Ct. App. Jan. 21, 2009) (citing Wynns v. Wynns, 2008

WL 4415786, at *2 (Tenn. Ct. App. Sept. 26, 2008)). Appellate courts are, therefore,

reluctant to second guess a trial court’s decision regarding alimony “unless it is not

supported by the evidence or is contrary to the public policy embodied in the applicable

statutes.” Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994) (citations

omitted). Tenn. Code Ann. § 36-5-121(g)(1) states that

Transitional alimony means a sum of money payable by one

(1) party to, or on behalf of, the other party for a determinate

period of time. Transitional 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(g)(1).

In addressing whether or not to award alimony, the trial court considered the

factors enumerated in Tenn. Code Ann. § 36-5-121(i). The court determined that wife has

the greater earning capacity. She makes $88,000 a year in addition to her housing and

cost of living allowances. Husband has not been employed since 2005, and instead has

functioned as a homemaker. Husband has recently gone through chemotherapy and

undergone a hernia surgery; at best, he can only work a sedentary job. Wife instead

enjoys good health. In addition, the trial court stated that “it is appropriate to attribute

fault and [to hold] that [w]ife caused the demise of the marriage.” Ultimately, the court

held that “[h]usband is the disadvantaged spouse and that [w]ife has the ability to pay

alimony.”

It is important to reiterate that the trial court held it will be difficult for husband to

find employment in Germany, once the divorce is entered, due to an established hierarchy

for obtaining US government employment overseas. Because husband will not be able to

obtain employment in Germany, and will no longer be a spouse of a government

employee, he will lose his residency status and will only be able to remain in Germany

for three months following the divorce. Therefore, the record indicates that husband is

going to have to make an intercontinental move in order to re-establish himself in the

United States following the divorce. Accordingly, the court stated that husband will need

financial support in order to “come to America to establish and maintain a household and

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to adjust to the economic consequences of the divorce.[] The [c]ourt is aware that it may

take some time before the Thrift Savings Fund can be transferred to [h]usband.”

Despite the foregoing, the court only awarded husband one year of transitional

alimony at $2,000 per month. The court’s conclusion as to the duration of transitional

alimony necessary for husband, the economically disadvantaged spouse, to adjust to the

economic consequences of divorce does not comport with its factual findings. The

evidence preponderates in favor of husband needing a longer duration of transitional

alimony. Therefore, we hold that the trial court erred by awarding husband only one year

of transitional alimony. We hold that the duration of the trial court’s award is insufficient

and will result in an injustice to husband. Accordingly, we modify the trial court’s

holding in order to extend the duration of transitional alimony; we hold that wife is to pay

husband $2,000 per month in transitional alimony for a period of five years. In order to

ensure clarity, we do not disturb the trial court’s holding that wife is to also maintain

husband’s health insurance until he reaches the age of 65.

C.

On appeal, husband argues that the trial court erred by awarding a larger portion of

the net marital assets to wife. He argues that, if anything, the court’s factual findings

support a larger award to husband than to wife. Husband argues that the trial court’s

rationale that the division was ultimately equitable, based upon the alimony and

attorney’s fees awards to husband, was error:

The trial court erred in its legal reasoning for providing [w]ife

more of the assets. There is no law to support that the trial

court may use the alimony award or award of attorney’s fees

as alimony as a reason for the disparate division of assets and

liabilities to one party. Even if the trial court could consider

those items, a total award of $24,000 in alimony and less than

$20,000 of alimony in solido for attorney’s fees does not even

provide [h]usband an equal amount of marital assets, much

less an equitable amount of marital assets. As such the trial

court’s legal reasoning is a ‘misapplication of statutory

requirements and procedures’ as described in Herrera, and

the division should be amended to provide [h]usband one-half

of the FERS Pension Account.

We agree with the trial court that the distribution must be equitable, but not necessarily

equal. However, in the present matter, the trial court did not clearly elucidate why it

believes that its legal conclusions as to the distribution of the net marital assets was

equitable in light of its factual findings. We believe that it was not.

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In making equitable division of marital property, Tenn. Code Ann. § 36-4-121(c)

instructs that the court shall consider all relevant factors, including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills,

employability, earning capacity, estate, financial liabilities

and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to

the education, training or increased earning power of the

other party;

(4) The relative ability of each party for future acquisitions of

capital assets and income;

(5) (A) The contribution of each party to the acquisition,

preservation, appreciation, depreciation or dissipation of

the marital or separate property, including the contribution

of a party to the marriage as homemaker, wage earner or

parent, with the contribution of a party as homemaker or

wage earner to be given the same weight if each party has

fulfilled its role;

(B) For purposes of this subdivision (c)(5),

dissipation of assets means wasteful

expenditures which reduce the marital property

available for equitable distributions and which

are made for a purpose contrary to the marriage

either before or after a complaint for divorce or

legal separation has been filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the

division of property is to become effective;

(9) The tax consequences to each party, costs associated with

the reasonably foreseeable sale of the asset, and other

reasonably foreseeable expenses associated with the asset;

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(10) In determining the value of an interest in a closely held

business or similar asset, all relevant evidence, including

valuation methods typically used with regard to

such assets without regard to whether the sale of

the asset is reasonably foreseeable. Depending on the

characteristics of the asset, such considerations could

include, but would not be limited to, a lack of

marketability discount, a discount for lack of control, and

a control premium, if any should be relevant and

supported by the evidence;

(11) The amount of social security benefits available to

each spouse; and

(12) Such other factors as are necessary to consider

the equities between the parties.

Tenn. Code Ann. § 36-4-121(c).

When considering the above factors, the trial court held that the parties had been

married for twenty-six years at the time of the complaint for divorce. Both parties are in

their sixties. Husband has serious and potentially critical health issues; wife enjoys good

health. Husband is only able to work a sedentary job, and it is highly unlikely that he will

be able to remain in Germany following the divorce, and even less likely that he will be

able to find a job. Wife’s residency in Germany is stable, due to her present employment.

Her present employment provides her with a sizeable income and a housing allowance

that covers her utilities and insurance. Husband has a bachelor’s degree; however, he has

not worked since 2005. Wife has maintained employment throughout the marriage; the

trial court determined that husband’s status as a homemaker substantially contributed to

the marriage, and allowed wife to increase her earning capacity. The court determined

that both parties had contributed to the acquisition of marital property and development

of the household; wife’s contributions were primarily financial, while husband’s was

primarily, but not exclusively, in his capacity as a homemaker. Tennessee law

specifically recognizes that substantial contribution to a household can be made in the

capacity of a homemaker. See Tenn. Code Ann. § 36-4-121(b)(1)(D) (stating that

“substantial contribution” may include, but not be limited to, the direct or indirect

contribution of a spouse as a homemaker). In addition, the court held that wife had

dissipated some of the marital assets. The trial court explicitly held that “[h]usband has

the greater financial need.” The court also held that “[w]ife has the greater ability for

future acquisition of capital assets and income as she is still employed.”

In light of the foregoing findings of fact made by the trial court, we hold that the

evidence preponderates against the court’s conclusion to award wife a greater share of the

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marital assets. The court’s conclusion to award husband only 43% of the marital assets

and wife 57% was in error and not equitable. Accordingly, we modify the division of net

marital assets such that the Roth IRA is split 50/50 between husband and wife. The

record indicates that the Roth IRA was accumulated during the marriage and is therefore

marital property and a proper subject of division. The addition of 50% of the Roth IRA to

husband’s net marital assets increases his net marital assets awarded to 48.3% at

$618,000; it renders wife’s awarded net marital assets 51.7% of the net marital assets at

$661,000.

In addition, the trial court held that the FERS pension account is a marital asset; it

awarded wife 100% of the account. The court stated that the pension would amount to

retirement benefits “of approximately $2,000 a month.” The pension was awarded to wife

in addition to her portion of the net marital assets.

The trial court failed to elucidate why this award to wife was equitable in light of

its factual findings. Husband argues that the decision to award the entirety of the FERS

pension account to wife was in error. He argues that this award of approximately $2,000

a month to wife resulted in a windfall in her favor, and that, when factored into the total

awarded assets, substantially alters the percentage distribution in favor of wife and is not

equitable.

We agree with husband that the decision to award wife 100% of the FERS pension

account was not equitable in light of the factual findings. In order to ensure that the

division of the net marital assets remains equitable, we hold that the FERS pension is to

be divided in proportion to this Court’s decision as to the division of the other net marital

assets. Accordingly, we hold that husband is to receive 48.3% of the FERS pension

payout once the pension payout commences; wife is to receive 51.7% of the FERS

pension payout once the pension payout commences.

D.

Husband requests this Court award him his attorney’s fees on appeal. This Court

stated, in Koja v. Koja, that

As with any alimony award, in deciding whether to award

attorney’s fees as alimony in solido, the trial court should

consider the relevant factors enumerated in [Tenn. Code

Ann.] § 36–5–101(d). A spouse with adequate property and

income is not entitled to an award of alimony to pay

attorney’s fees and expenses. Where a spouse has property

and income adequate for her needs, it may not be proper for

the trial court to make an additional award of alimony in

solido for payment of the wife’s attorney’s fees. “These

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awards are appropriate, however, only when the spouse

seeking them lacks sufficient funds to pay his or her own

legal expenses,” or would be required to “deplete his or her

resources in order to pay these expenses.” Where one party

has been awarded additional funds for maintenance and

support and such funds are intended to provide the party with

a source of future income, the party need not be required to

pay legal expenses by using assets that will provide for future

income.

Koja v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000) (internal citations omitted). It is

clear that husband would be required to deplete his awarded resources in order to pay his

attorney’s fees on appeal. Additionally, as stated infra, wife has been paying her

attorney’s fees with marital assets. Therefore, we hold that this is a proper instance in

which to order wife to pay husband’s reasonable attorney’s fees and costs incurred on

appeal, in addition to the attorney’s fees awarded by the trial court, as alimony in solido.

This matter is remanded to the trial court for the sole issue of setting the amount of

husband’s attorney’s fees accrued on appeal.

V.

Lastly, husband filed an execution of garnishment. Wife filed a motion for stay of

execution, or to quash the garnishment. In response, husband filed a motion stating that

wife has failed to pay any alimony, as ordered; has paid no attorney’s fees, as ordered;

has failed to transfer the $65,000 in the form of the Community Nation Account, as

ordered; and has failed to transfer the Thrift Savings Account, as ordered. In addition,

husband stated that wife has instead used the divorce as “a weapon” and has advised the

government that husband is no longer married to her; this had the effect of revoking his

status as a dependent, preventing him from using the commissary, and has placed his

status in Germany in jeopardy. On June 3, 2019, the trial court entered an order staying

the execution of the garnishment. On appeal, husband asks that we remove this

impediment. Given husband’s precarious situation, and seeing no reason for further

delay, we vacate the trial court’s order staying execution of the garnishment.

VI.

The judgment of the trial court is modified, and, as such, is affirmed. Costs on

appeal are taxed to the appellee, Ruby Diane Barron. This matter is remanded to the trial

court to set the amount of attorney’s fees accrued on appeal and for collection of costs

assessed below.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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