Laurel Martin Griffin v. Kevin Michael Griffin

08/19/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 5, 2020 Session

LAUREL MARTIN GRIFFIN V. KEVIN MICHAEL GRIFFIN

Appeal from the Chancery Court for Williamson County

No. 45837 James G. Martin, III, Chancellor

No. M2019-01113-COA-R3-CV

After seventeen years of marriage, a wife filed a complaint for divorce. The husband

answered and filed a counter-complaint for divorce. The trial court granted the wife a

divorce, named her primary residential parent of the parties’ minor children, classified and

divided the marital estate, ordered the husband to pay the wife $1,941 per month in child

support, and awarded the wife alimony in futuro in the amount of $6,000 per month. The

husband appealed. We affirm the trial court’s designation of Wife as the primary

residential parent and the division of the marital estate as modified. We vacate the award

of child support and the amount of alimony and remand for recalculation.

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

in Part, Vacated in Part, and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Sarah Richter Perky and Cathy Speers Johnson, Franklin, Tennessee, for the appellant,

Kevin M Griffin.

Larry Hayes, Jr., and Rachel Thomas, Nashville, Tennessee, for the appellee, Laurel Martin

Griffin.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Laurel Martin Griffin (“Wife”) and Kevin Michael Griffin (“Husband”) met in Los

Angeles, California in 1992; Husband moved to New Orleans, Louisiana shortly thereafter.

While the parties lived in different states, they dated other people. They started seeing

each other exclusively in 1997 after Wife moved to New Orleans. The parties married on

October 6, 2001, and have three children: an adult son and two minor children (born in

2008). In 2006, the parties moved back to Los Angeles and remained there for

approximately five years. In January 2011, they moved to Franklin, Tennessee. On January

10, 2017, after approximately seventeen years of marriage, Wife filed a complaint for

divorce. Husband filed an answer and counter-complaint for divorce on February 21, 2018.

The Parties’ Education and Work History

The trial court heard the matter on December 4, 5, and 18, 2018, and January 14,

2019. At the time of trial, Wife was forty-eight years old and in good health. Prior to the

marriage, she attended Louisiana State University for two years and then moved to Los

Angeles where she attended Santa Monica Junior College and California State University

in pursuit of a degree in Sociology. She never obtained her degree. Wife testified that,

while living in California, she worked mostly part-time hours at several retail stores, a vet

clinic, and a coffee shop. She later obtained full-time employment as a personal assistant

at Mercury Records and, after moving to Louisiana, worked for a salvage business selling

architectural antiques. At all of these jobs, Wife earned between $7 and $10 per hour. The

most that Wife earned in a single year was $23,501 in 1996, the year before she began

living with Husband in New Orleans.

Wife had no significant employment outside of the home during the marriage.1

Instead, she fulfilled the roles of homemaker and primary caregiver for the parties’

children. Wife stated that, although she had assistance from a housekeeper for a couple of

hours at least one day each week, she still did all of the family’s laundry and cooking. Until

2011, Wife also had childcare assistance for at least part of the day Monday through Friday;

she did not have childcare assistance once the children began attending school. Wife

testified that the parties’ two younger children were actively involved in extracurricular

activities. She was the one primarily responsible for transporting the children to and from

their extracurricular activities and for purchasing the necessary equipment. Wife

frequently participated at the children’s school by organizing activities, parties, field trips,

and fundraisers.

When asked about the parties’ parenting styles, Wife described them both as “liberal

but not permissive.” She believed that Husband loved the children and was a good father.

Because she had always been the children’s primary caregiver, however, Wife asked the

court to designate her as the primary residential parent. She acknowledged that, prior to

trial, she purchased a home in College Grove, which was twenty-one miles from the marital

residence and would require the children to change schools if she was designated the

primary residential parent.

1

In 2016 and 2017, Wife worked for the Pilgrimage Music and Cultural Festival. She earned $5,287 in

2016 and $14,999 in 2017.

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At the time of trial, Husband was fifty-two years old and in good health. He

testified that he was the primary wage earner during the marriage. He has a bachelor’s

degree in English from Louisiana State University but does not use his degree. Rather,

Husband earns a living as a guitar player, songwriter/engineer, business man, speaker, and

lead singer for a band known as Better Than Ezra. Additionally, Husband helped found

the Pilgrimage Music and Cultural Festival (“Pilgrimage Festival” or “Festival”), which

has been held in Franklin each September since 2015. Husband submitted evidence

showing he had significant earnings between 1995 and 2016. A large portion of these

earnings came from royalties for songs that he wrote or co-wrote and/or that Better Than

Ezra recorded. Tax returns for the years 2015, 2016, and 2017 showed that he had an

average monthly income of $25,102.

Prior to trial, the parties separated the musical compositions Husband wrote during

the marriage from those he wrote prior to the marriage. Husband’s financial manager,

Michael Bergeron, testified about the royalty income from the marital compositions. He

stated that, in both 2017 and 2018, the marital royalty income was approximately $103,000

per year. He opined that the marital royalty income would continue at that level for a

period of eight to ten years. During direct examination, Husband asked the trial court to

divide the marital royalty income equally to create a source of income for Wife. According

to Husband, dividing the marital royalty income would provide Wife with a monthly

income of $4,377. Husband stated that he was willing to guarantee that Wife received that

amount each month for up to eight years “[a]s long as it’s used in determining whatever

alimony” the court might award Wife.

Husband testified that he traveled extensively with his band and in pursuit of his

songwriting career. His travel schedule is planned in advance, but it often changes with

very little notice. Prior to Wife filing for divorce, Husband was home thirty to forty percent

of the year. Since Wife filed for divorce, however, he had spent more time working from

his home studio. This allowed him to become more involved with the children’s lives. For

instance, Husband stated that he began to coach their athletic teams occasionally, help them

with their homework, take them on trips, and get up with them in the mornings to make

them breakfast. He characterized his parenting style as “positive” and “supportive” by

encouraging the children to socialize and participate in extracurricular activities. In

contrast, he characterized Wife’s parenting style as much more passive because “she

doesn’t request anything of them” and “let[s] them languish with their Xbox or stuff like

that.” Husband believed that Wife promoted a permissive environment because she

displayed a picture in the marital home of her holding a marijuana cigarette. He planned

to continue living in the marital residence after the divorce. Thus, he asked the trial court

to designate him as the primary residential parent so the children would not need to change

schools.

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The Pilgrimage Festival

A major point of contention during trial was the parties’ interest in Pilgrimage

Presents, LLC (“Pilgrimage Presents”), the owner of the Pilgrimage Festival. Husband

testified that, in November 2013, he went for a run in Harlinsdale Park and thought it would

be a good location to have a family-friendly festival similar to the Jazz and Cultural Festival

in New Orleans. Thereafter, he entered into a partnership with two other people, and they

all began meeting with community leaders in Franklin to generate interest in the event.

Husband made significant efforts in planning and preparing for the Festival throughout

2014 and 2015. He met with numerous people to promote the Festival, prepared at least

thirty-two presentations, and raised additional capital through various investors. Wife had

no direct involvement with any of these efforts, but she testified that she worked the

Festival’s merchant area every year except 2018.

The Festival was held for the first time in September 2015. Husband stated that it

was not profitable that year, losing approximately $1,200,000. The Festival again lost

money in 2016, but it was more successful than the previous year. In 2017, Justin

Timberlake and other popular acts performed at the Festival, and the Festival generated a

profit that year. Unfortunately, heavy rain caused the Festival to be canceled in 2018 after

only six hours, resulting in a debt of $2,000,000. Husband testified that the Festival was

insured, but he was not sure how much of the debt would be reimbursed because, at the

time of trial, the insurance company had not yet processed the claim. At a minimum, he

stated, he and his two partners were liable for a $1,000,000 line of credit with SunTrust

Bank for the 2018 Festival. His personal liability on the loan was $333,333.

Husband testified that he and Wife owned 9.7242% of Pilgrimage Presents,

3.4004% directly and 6.3283% indirectly through their interest in a separate entity, Bring

the Wood, LLC. Tom Price, a certified public accountant and certified valuation analyst,

testified on behalf of Husband regarding the value of Pilgrimage Presents. Due to the

$2,000,000 debt caused by canceling the Festival in 2018 and the liability for the

$1,000,000 loan, Mr. Price valued Pilgrimage Presents as “either a negative or zero.”

Despite this valuation, Wife asked the trial court to divide the parties’ interest in Pilgrimage

Presents. Husband asked the trial court to award the entire 9.7242% interest to him because

he did not want to remain in business with Wife. Moreover, he stated that the only way

the Festival would be profitable in the future would be hard work by him and others, not

any effort by Wife.

Trial Court’s Decision

In an order entered on March 5, 2019, the trial court granted Wife a divorce and

then classified, valued, and divided the marital estate. The court awarded Wife 50% of the

marital royalty income and ordered Husband to guarantee that she receive $4,377 per

month in marital royalty income for eight years. After finding that Wife had no skills or

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education that would equip her to obtain employment, the trial court awarded her alimony

in futuro in the amount of $6,000 per month. Finally, the court designated Wife as the

primary residential parent, set a residential parenting schedule granting the parties equal

parenting time, and ordered Husband to pay child support to Wife in the amount of $1,941

per month. Husband appealed.

On appeal, Husband presents the following issues for our review: 1) whether the

trial court erred in designating Wife as the primary residential parent, 2) whether the trial

court failed to make a full and equitable division of the marital estate, 3) whether the trial

court erred in determining child support by miscalculating the parties’ incomes, and 4)

whether the trial court erred in the amount, type, and duration of alimony awarded to Wife.

ANALYSIS

I. Primary Residential Parent.

Husband argues that the trial court abused its discretion in failing to designate him

as primary residential parent so that the parties’ children would not have to change schools.

In any divorce proceeding “involving a minor child,” a trial court “shall incorporate a

permanent parenting plan.” Tenn. Code Ann. § 36-6-404(a). The parenting plan must

allocate parenting responsibilities, establish a residential parenting schedule, and award

child support. See Tenn. Code Ann. § 36-6-402(3). When establishing a residential

parenting schedule, a court must designate one parent as the primary residential parent and

then designate with which parent the child will reside on given days during the year. Tenn.

Code Ann. § 36-6-402(5); see also Armbrister v. Armbrister, 414 S.W.3d 685, 695 (Tenn.

2013). The General Assembly has declared that custody determinations “shall be made on

the basis of the best interest of the child” and must “permit[] both parents to enjoy the

maximum participation possible in the life of the child” consistent with the factors set forth

in Tenn. Code Ann. § 36-6-106(a)(1)-(15). Tenn. Code Ann. § 36-6-106(a).

Because custody determinations are factually driven and “often hinge on subtle

factors,” trial courts have “broad discretion in these matters.” Gaskill v. Gaskill, 936

S.W.2d 626, 631 (Tenn. Ct. App. 1996); see also Armbrister, 414 S.W.3d at 693.

Therefore, appellate courts decline to reverse a trial court’s custody determination absent

an abuse of discretion. Armbrister, 414 S.W.3d at 693. A trial court abuses its discretion

when it “‘appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case

on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an

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

The trial court expressed concern during trial that the children would have to change

schools if Wife was designated primary residential parent:

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The evidence in this case is undisputed that these little boys have been here

in Williamson County since January 2011. They have gone to Montessori

school for three years. They have now been at Poplar Grove for the last two-

plus years as they’re in their third grade year now. Every bit of the testimony

I have heard so far is that they’re thriving. And then the mom goes and buys

a house through her family’s trust in College Grove, 21 miles away from

here. I’m just troubled by that. It’s going to interfere - - certainly, it’s going

to require a change of school. They can’t go to Poplar Grove and live in

College Grove anymore unless the Court names the father as the primary

residential parent. And then if he’s the primary residential parent, then I can

at least give [them] the possibility of going to Poplar Grove.

On the other hand, in the Court’s mind, I don’t have the authority to

designate somebody as a primary residential parent solely because of the

school options.

Despite this concern, the trial court designated Wife as the primary residential parent after

considering all of the relevant factors in Tenn. Code Ann. § 36-6-106(a) and concluding

that they favored Wife. It appears that the court placed considerable weight on the

following factors:

(1) [Wife] has performed the majority of the parenting responsibilities

relating to the daily needs of the parties’ children. The strength, nature and

stability of her relationship with the children is greater than the strength,

nature and stability of the relationship between [Husband] and the parties’

children even though the Court finds his relationship to be strong.

(2) Both parties presented evidence of past and potential for future

performance of parenting responsibilities. Both parties are eager and willing

to be designated the children’s primary residential parent. The Court does

not find that either party has engaged in conduct designed to disparage the

relationship between the children and the other party. The Court finds that

[Wife] has a greater desire and ability to encourage a close and continued

relationship with the children than [Husband] simply because she views him

in a much more positive light than [Husband] views [Wife].

....

(5) [Wife] has been the primary caregiver of the children throughout their

lives. [Husband] has participated more in the children’s lives since [Wife]

filed her Complaint and the Court commends him for doing so.

....

(10) Continuity for the parties’ children is important. However, the Court

does not find that the parents’ divorce is going to disrupt that continuity

inasmuch as the children will enjoy significant parenting time with each of

their parents.

....

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(14) [Husband’s] employment schedule makes it difficult for him to adhere

to a strict parenting schedule.

The evidence in the record does not preponderate against these findings. Wife

testified that, for most of the marriage, Husband spent only thirty to forty percent of each

year at home because he toured heavily with his band and for his songwriting career. Thus,

Wife had been the primary caregiver for the children since they were born. She took the

children to almost all of their medical appointments. She also took them to and from their

extracurricular activities and procured the necessary equipment for those activities. Wife

often participated at the children’s school. For instance, when the children attended

Montessori school, Wife worked in their classrooms, served on the school’s board of

directors, and organized activities at the school. While the children were in grades

kindergarten through third, she acted as a room mother for one or both of the children, a

position that required her to organize parties for the children’s classes and arrange gifts for

their teachers on birthdays and Christmas. Wife had also attended all of the children’s field

trips since they started kindergarten. Although Husband began spending more time at

home after Wife filed for divorce, he still spent about fifty percent of the year traveling,

and his travel schedule often changed with little notice.

As the trial court noted, it is concerning that the children would be required to

change schools with Wife designated as the primary residential parent. The children had

attended the same school since kindergarten, and they had done well there. This concern,

however, does not outweigh the factors favoring Wife’s designation as the primary

residential parent. We conclude that the trial court did not abuse its discretion in

designating Wife as the primary residential parent.

II. Division of the Marital Estate.

A. Applicable legal standards.

Because Tennessee is a dual property state, a trial court must identify all of the

divorcing parties’ assets and classify them as either separate property or marital property

prior to making an equitable division of the marital estate pursuant to Tenn. Code Ann.

§ 36-4-121. Gilbert v. Gilbert, No. E2009-02118-COA-R3-CV, 2011 WL 13165341, at

*3 (Tenn. Ct. App. Sept. 15, 2011). The General Assembly has defined separate property

to include the following:

(A) All real and personal property owned by a spouse before marriage,

including, but not limited to, assets held in individual retirement accounts

(IRAs) as that term is defined in the Internal Revenue Code of 1986 (26

U.S.C.), as amended;

(B) Property acquired in exchange for property acquired before the marriage;

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(C) Income from and appreciation of property owned by a spouse before

marriage except when characterized as marital property under subdivision

(b)(1);

(D) Property acquired by a spouse at any time by gift, bequest, devise or

descent;

(E) Pain and suffering awards, victim of crime compensation awards, future

medical expenses, and future lost wages; and

(F) Property acquired by a spouse after an order of legal separation where the

court has made a final disposition of property.

Tenn. Code Ann. § 36-4-121(b)(2) (footnote omitted). Only marital property is subject to

division, and it is defined 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.” Tenn. Code Ann. § 36-4-121(b)(1)(A); see also Gilbert, 2011 WL

13165341, at *4.

After classifying property as either separate or marital, a trial court should “place a

reasonable value on each piece of property subject to division.” Owens v. Owens, 241

S.W.3d 478, 486 (Tenn. Ct. App. 2007). When determining the value of a marital asset,

“a trial court should consider all competent and relevant evidence pertaining to the

valuation of that asset.” Bertuca v. Bertuca, No. M2006-00852-COA-R3-CV, 2007 WL

3379668, at *4 (Tenn. Ct. App. Nov. 14, 2007). The parties bear the burden of presenting

competent evidence for the trial court to consider in making a proper valuation

determination. Id. A trial court is then “free to place a value on a marital asset that is

within the range of evidence submitted.” Id.

Issues concerning the classification and valuation of property present questions of

fact. Inzer v. Inzer, No. M2008-00222-COA-R3-CV, 2009 WL 2263818, at *4 (Tenn. Ct.

App. July 28, 2009); Owens, 241 S.W.3d at 485. Therefore, we review a trial court’s

decision classifying and valuing property de novo with a presumption of correctness, unless

the evidence preponderates otherwise. TENN. R. APP. P. 13(d); Bertuca, 2007 WL

3379668, at *4. A trial court’s conclusions of law are reviewed de novo with no

presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn.

2002).

After the parties’ property has been classified as either separate or marital, a trial

court must divide the marital estate equitably by considering the relevant factors identified

in Tenn. Code Ann. § 36-4-121(c).2 Larsen-Ball v. Ball, 301 S.W.3d 228, 234 (Tenn.

2

The relevant factors include the following:

(1) The duration of the marriage;

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2010). To be considered equitable, the division of marital property does not need to be

“precisely equal,” and it is not necessary that each party “receive a share of every piece of

marital property.” Owens, 241 S.W.3d at 490. Because “[t]he division of the marital estate

includes both the division of the marital property and the allocation of the marital debt,”

appellate review of a trial court’s division of marital property “must take into consideration

how the trial court allocated the marital debt.” Id. A trial court has “broad discretion in

fashioning an equitable division of marital property,” id., and we will not “‘disturb the trial

court’s decision unless the distribution lacks proper evidentiary support or results from

some error of law or misapplication of statutory requirements and procedures.’” Davis v.

Davis, No. M2015-02106-COA-R3-CV, 2016 WL 7479138, at *2 (Tenn. Ct. App. Dec.

29, 2016) (quoting Watson v. Watson, 309 S.W.3d 483, 495 (Tenn. Ct. App. 2009)).

B. Debt from the Pilgrimage Festival.

Husband contends that the trial court failed to make a full and equitable division of

the marital estate because it did not account for all of the marital indebtedness.

(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;

(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).

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Specifically, he argues that the trial court failed to account for his $333,333 personal

liability for the SunTrust loan associated with the 2018 Pilgrimage Festival. For the

reasons discussed below, we respectfully disagree.

In the March 5, 2019 order, the trial court awarded Husband the 9.7242% interest

in Pilgrimage Presents along with all of the interest he owned in five other companies.3

Under the marital debt section of the order, the trial court identified the following debt:

“[Husband’s] Share of Debt Associated with Guaranty on Note Relating to Pilgrimage

Presents LLC ([Husband] is Jointly and Severally Liable With Two Others as guarantors

on $1,000,000.00 Note Owed to SunTrust Bank)” with a value of $333,333.33. The court

then stated that Husband “shall be responsible for paying any and all debts relating to

and/or secured by a lien on the business interests awarded him pursuant to the terms of this

Memorandum and Order and shall hold [Wife] harmless from any liability therefor.”

Husband correctly points out that, in cells F7 and G7 of the equitable division table

attached to the March 5, 2019 order, the trial court stated that the value of the “[d]ebt

relating to and/or secured by a lien on the business interests awarded to him” was

“unknown.” It appears, however, that the trial court accounted for the SunTrust loan

elsewhere in the chart. In cells C8 and C9, the trial court awarded Husband his interest in

Pilgrimage Presents and one-half of a $150,000 note payable to him by Pilgrimage

Presents. The court then valued both of these assets at $0. The valuation of these assets

was based upon Mr. Price’s testimony regarding Husband’s interest in Pilgrimage Presents.

Mr. Price testified that he valued Husband’s interest in Pilgrimage Presents at $0 based, in

part, on his consideration of Husband’s $333,333 personal guarantee on the SunTrust Bank

loan.

We, therefore, conclude that the trial court accounted for Husband’s personal

liability on the SunTrust loan when it divided the marital property and allocated the marital

debt.

C. Calculation errors.

Husband next contends that the trial court erred in calculating the division of the

marital assets, resulting in a “grossly disproportionate and inequitable division of the

marital estate.” Using the trial court’s calculations, Wife received marital assets in the net

amount of $562,279.70 (49%) and Husband received a net amount of $574,313.81 (51%).

Husband asserts that the trial court incorrectly calculated the marital portion of his

retirement account when dividing the marital estate. We agree that the trial court made

calculation errors regarding Husband’s retirement account.

3

These other companies include Ezra Dry Goods, Inc., Ezra and Sons, LLC, BTE et CIE, LLC, Pint of

Mirth, LLC, and Bring the Wood.

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At trial, it was undisputed that Husband had maintained a Morgan Stanley

investment account, the marital portion of which was valued at $79,913, and a Morgan

Stanley profit-sharing retirement account, the marital portion of which was valued at

$226,035.17. The trial court awarded Husband all of the marital portion of the investment

account ($79,913) and divided the marital portion of the profit-sharing retirement account

equally between the parties with each party receiving $113,017.59. When calculating the

division of the marital estate in the property division chart, however, the trial court

incorrectly calculated Husband’s half of the marital portion of the profit-sharing account

as the account’s entire balance, $226.035.17, rather than as $113,017.59. The court then

incorrectly calculated Wife’s half of the profit-sharing account as $79,913 rather than

$113,017.59.

Once the trial court’s mathematical errors are corrected, Wife would receive marital

assets with a net value of $595,384.29 (56%) and Husband would receive a net amount of

$461,296.23 (44%). A thorough examination of the March 5, 2019 order shows that the

trial court intended to make a substantially equal division of the marital estate, however, as

the court ordered many of the assets to be divided equally.4 Considering the statutory

factors, a substantially equal division would be equitable. For instance, it was a marriage

of long duration, the parties were close in age, and both made contributions to the

acquisition of the assets during the marriage. Because the trial court intended to make a

substantially equal division of the marital estate but the calculation corrections result in an

unequal division, it is appropriate to modify the trial court’s order by awarding Husband

$56,477.23 from the sale proceeds of the lot adjoining the marital residence, which was

valued at $476,482.92, and award the remainder to Wife. See Headrick v. Headrick, No.

E2005-02657-COA-R3-CV, 2006 WL 2872469, at *4 (Tenn. Ct. App. Oct. 10, 2006) (after

concluding that certain property should have been included in distribution and that adding

the property would result in an unequal distribution, modifying the trial court’s order to

reflect a substantially equal distribution is appropriate when the order demonstrates that

was the trial court’s intent). This modification results in Husband receiving $517,773.46

(49%) in marital assets and Wife receiving $538,907.06 (51%).

D. Marital royalty income guarantee.

Husband next argues that the trial court erred in ordering him to guarantee Wife’s

royalty payments for eight years. Mr. Bergeron testified at trial that 46.55% of Husband’s

royalty income came from marital compositions while 53.5% came from non-marital

compositions. This allocation translated into approximately $105,055 per year that

Husband received in marital royalty income. Mr. Bergeron opined that the marital royalty

4

The trial court ordered that the following assets be divided equally: (1) Southwest Airlines rapid rewards

points, (2) US Airlines miles, (3) marital portion of the profit-sharing retirement account, (4) the royalties

from Husband’s marital compositions, and (5) a $150,000 note payable to Husband by Pilgrimage Presents,

LLC.

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income would remain near that amount for eight to ten years. Husband asked the trial court

to divide the marital royalty income equally between the parties ($52,500 each), which

would provide Wife with a monthly income of $4,377. He told the court that he would be

willing to guarantee that Wife received $4,377 per month in royalty income for eight years

“provided that the royalty income served to satisfy alimony.” On appeal, Husband

contends that the trial court should not have ordered him to guarantee Wife’s royalty

income for eight years because that income was not used to address Wife’s need for

alimony.

When Husband raised this issue at trial, the judge had a candid discussion with him

about how his willingness to guarantee Wife’s monthly royalty income was a separate issue

from any alimony obligation he may have to Wife:

THE COURT: So in figuring that out, you would have to basically look at it

on an annual basis. So at the end of a year you would look back on the 12

months preceding, total up the royalties that were paid to you and the

royalties paid to your wife, they ought to be the same. And then if it comes

up to 52,500 or more, then there wouldn’t be any question. If it’s less than

52,500, then you would write her a check for the difference.

THE WITNESS: Yes, sir. May I - - may I qualify?

THE COURT: Well, yeah, I mean, I’m asking you.

THE WITNESS: As long as it’s used in determining whatever alimony you

deem [Wife] is - -

THE COURT: Well, I don’t know. That’ll be up to the Court.

THE WITNESS: Yes, sir.

THE COURT: I just want to know how strongly you feel about the value of

this asset.

THE WITNESS: I do feel strongly up to eight years, and then it gets gray. I

just don’t know.

THE COURT: Now we’re getting real, you see because Mr. Bergeron said

ten, or at least that’s my memory. And now you’re saying eight.

THE WITNESS: Yes, sir.

The phrase, “Be careful what you wish for, lest it come true” is an apt description for these

facts. Husband asked the trial court to award Wife fifty percent of the marital royalty

income in order to provide Wife a monthly income of $4,377. Of his own volition,

Husband then told the court that he felt so strongly about this asset that he was willing to

guarantee that Wife received $4,377 per month for up to eight years. As the above

exchange shows, the trial court made Husband aware when he agreed to the guarantee that

it was unrelated to any alimony obligation he may owe to Wife. Husband has cited no

authority demonstrating that the trial court’s division of the marital estate with the

guarantee regarding the marital royalty income to Wife constituted reversible error, and we

are unaware of any. This argument is without merit.

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III. Child Support.

Husband asserts that the trial court erred in determining his child support obligation

by miscalculating the parties’ incomes. Under Tennessee law, parents have a legal

obligation “to support their minor children in a manner commensurate with their own

means and station in life.” Richardson v. Spanos, 189 S.W.3d 720, 724 (Tenn. Ct. App.

2005); see also Tenn. Code Ann. § 34-1-102(a). The Child Support Guidelines

promulgated by the Tennessee Department of Human Services govern child support

determinations. Tenn. Code Ann. § 36-5-101(e); see also Richardson, 189 S.W.3d at 724-

25. Trial courts still retain some discretion when determining child support despite the

adoption of the child support guidelines. Horine v. Horine, No. E2013-02415-COA-R3-

CV, 2014 WL 6612557, at *4 (Tenn. Ct. App. Nov. 24, 2014) (citing Richardson, 189

S.W.3d at 725). Therefore, we review a trial court’s child support determination under the

abuse of discretion standard. Id.

Generally, when determining child support, the most important factor is “the amount

of a parent’s income.” Anderton v. Anderton, 988 S.W.2d 675, 680 (Tenn. Ct. App. 1998);

see also Eldridge v. Eldridge, 137 S.W. 3d 1, 23 (Tenn. Ct. App. 2002). After ascertaining

the obligor parent’s income, the guidelines require a court “to calculate the required amount

of support using the percentages provided in the guidelines.” Anderton, 988 S.W.2d at

680. The amount derived from this calculation “becomes the presumptive amount of child

support owed.” Richardson, 189 S.W.3d at 725. Because this presumption is rebuttable,

a court may deviate from the amount required by the guidelines so long as the court makes

“specific written findings regarding how the application of the Child Support Guidelines

would be unjust or inappropriate in the case.” Id.; see also Tenn. Code Ann. § 36-5-

101(e)(1)(A); TENN. COMP. R. & REGS. 1240-02-04-.07.

In the present case, the trial court designated Wife as the primary residential parent

and granted Husband 181 days of parenting time per year. The trial court then set

Husband’s child support obligation at $1,941 per month based on its finding that Husband’s

monthly income was $25,102 and that Wife’s monthly income was $4,377. Husband

asserts that the trial court should have added an additional $2,600 to Wife’s monthly

income because “the proof was uncontroverted that [Wife] had a historic earning capacity

of $15 per hour in 2015, 2016, and 2017, resulting in a gross income of $2,600 per month

for full-time employment.” The evidence in the record, however, contradicts Husband’s

assertion. Wife’s social security statement of wages shows that her pre-marital monthly

earnings averaged approximately $464. For the first fifteen years of the marriage, all of

her earnings combined equaled $310 for the entire time period. The only years of the

marriage in which Wife earned more than $500 were 2016 ($5,287) and 2017 ($14,999),

when Husband and his business partners paid her for working at the Pilgrimage Festival.

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In light of the foregoing, we conclude that the trial court correctly set Wife’s monthly

income at $4,377.5

The evidence, however, preponderates against the trial court’s finding that Husband

had a monthly income of $25,102. At trial, the parties introduced into evidence their joint

tax returns from 2015, 2016, and 2017. It was undisputed that Husband’s average monthly

income during those three years was $25,102, but Husband testified that his average

monthly income was $25,102 only if he received all of the royalty income. If the trial court

awarded Wife fifty percent of the marital royalty income, Husband stated, his monthly

income would be $20,725. Wife did not present evidence contradicting Husband’s

testimony on this issue nor did the trial court find his testimony about this matter not

credible. Thus, because the trial court awarded Wife fifty percent of the marital royalty

income, it incorrectly calculated Husband’s child support obligation by using $25,102 as

the amount of his monthly income. We, therefore, vacate the trial court’s child support

determination and remand for recalculation.

IV. Spousal Support.

Husband challenges the trial court’s award of alimony on two grounds. First, he

argues that the trial court abused its discretion in awarding Wife alimony in futuro rather

than rehabilitative alimony because the proof “clearly established” that it was feasible to

economically rehabilitate Wife. Second, he argues that the amount of alimony awarded

exceeded his ability to pay. Because spousal support decisions are “factually driven and

involve[] the careful balancing of many factors,” a trial court has “broad discretion to

determine whether spousal support is needed and, if so, the nature, amount, and duration

of the award.” Gonsewski, 350 S.W.3d at 105 (footnote omitted). Therefore, we review a

trial court’s spousal support decision under the abuse of discretion standard. Cain-Swope

v. Swope, 523 S.W.3d 79, 94 (Tenn. Ct. App. 2016). Our review of a trial court’s

discretionary decision should determine “whether there is a factual basis for the decision

in the record, whether the court properly identified and applied the applicable legal

principles, and whether the decision is within the range of acceptable alternative

dispositions.” Id. at 95; see also Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.

2010)).

5

In his appellate brief, Husband argues alternatively that the trial court should have imputed income to

Wife pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv)(IV). Husband is correct that this

regulation permits a court to impute $35,936 in annual gross income to a female parent “when there is no

reliable evidence of a parent’s income.” TENN. COMP. R. & REGS. 1240-02-04-.04(3)(a)(2)(iv). Here, Wife

presented reliable evidence of her income or income potential when she entered into evidence her social

security statement of wages. Thus, Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv) is not applicable

to the facts of this case. See In re Samuel P., No. W2016-01665-COA-R3-JV, 2018 WL 1046784, at *13

(Tenn. Ct. App. Feb. 23, 2018) (stating that the regulation “‘is only available in the event reliable evidence

of a parent’s income or income potential is not presented’”) (quoting Garrett v. Elmore, No. M2013-01564-

COA-R3-JV, 2014 WL 3763806, at *11 (Tenn. Ct. App. July 29, 2014)).

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Husband first contends that the trial court abused its discretion in awarding Wife

alimony in futuro rather than rehabilitative alimony. Tennessee recognizes four types of

alimony: “(1) alimony in futuro; (2) alimony in solido; (3) rehabilitative alimony; and (4)

transitional alimony.” Mayfield v. Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012) (citing

Tenn. Code Ann. § 36-5-121(d)(1)). Alimony in futuro and alimony in solido are

considered forms of long-term spousal support. Gonsewski, 350 S.W.3d at 107-08.

Alimony in futuro provides support until the recipient either remarries or dies and may be

awarded “when the economically disadvantaged spouse cannot achieve self-sufficiency

and economic rehabilitation is not feasible.” Mayfield, 395 S.W.3d at 115. Typically,

courts award alimony in solido “to adjust the distribution of the marital estate,” id., and it

is “paid in a lump sum payment of cash or property, or paid in installments for a definite

term,” Gonsweski, 350 S.W.3d at 108.

By contrast, rehabilitative alimony and transitional alimony are forms of short-term

spousal support. Mayfield, 395 S.W.3d at 115. Rehabilitative alimony “‘is designed to

increase an economically disadvantaged spouse’s capacity for self-sufficiency,’” id.

(quoting Gonsewski, 350 S.W.3d at 109), by enabling him or her to acquire additional

training or education, Gonsewski, 350 S.W.3d at 108. Transitional alimony provides

“‘bridge-the-gap’” support to a spouse who is already self-sufficient “‘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.’” Mayfield, 395 S.W.3d at

115 (quoting Endgesser v. Endgesser, 42 So. 3d 249, 251 (Fla. Dist. Ct. App. 2010), and

Gonsewski, 350 S.W.3d at 109).

Our spousal support statutes reflect a legislative preference favoring rehabilitative

or transitional alimony over alimony in futuro or alimony in solido. Tenn. Code Ann. §

36-5-121(d)(2)-(3); Gonsewski, 350 S.W.3d at 109. Tennessee Code Annotated section

36-5-121(d)(2) defines “rehabilitated” as “to achieve, with reasonable effort, an earning

capacity that will permit the economically disadvantaged spouse’s 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 the other

spouse.” An award of long-term support is not “a guarantee that the recipient spouse will

be able to maintain the same standard of living enjoyed before the divorce because ‘two

persons living separately incur more expenses than two persons living together.’”

Mayfield, 395 S.W.3d at 115 (quoting Gonsewski, 350 S.W.3d at 108). The standard of

living enjoyed by the parties during the marriage factors into a court’s support

determination, but “the economic reality is that the parties’ post-divorce assets and incomes

often will not permit each spouse to maintain the same standard of living after the divorce

that the couple enjoyed during the marriage.” Id. at 115-16.

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When making spousal support determinations, courts consider the following factors:

(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;

(8) The provisions made with regard to the marital property as defined in

§ 36-4-121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible

contributions to the marriage as monetary and homemaker contributions,

and tangible and intangible contributions by a party to the education,

training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as

are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). In addition to considering each relevant factor enumerated

in Tenn. Code Ann. § 36-5-121(i), courts must consider “‘the disadvantaged spouse’s need

and the obligor spouse’s ability to pay.’” Gonsewski, 350 S.W.3d at 110 (quoting Riggs v.

Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007)). These last two factors are the most

important. Id.

An examination of the above factors in light of the evidence in the record militates

in favor of an award of alimony in futuro to Wife. In regard to the first factor, Husband’s

earning capacity far exceeds that of Wife. He has been a successful musician, performer,

songwriter, and co-founder of the Pilgrimage Festival. Between 2015 and 2017, Husband’s

gross monthly income averaged $25,102, whereas the only income Wife earned during that

three-year period was $5,287 in 2016 and $14,999 in 2017 for her work at the Pilgrimage

Festival—employment that is no longer available to her. Husband also has greater

financial resources than Wife due to the substantial income producing nature of the song

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royalties classified as his separate property. Wife, on the other hand, has minimal work

experience due to her roles during the marriage as a caregiver and homemaker. Thus, as

the trial court found, she has no significant employability or earning capacity.

Regarding factor two, Husband has a bachelor’s degree in English that he does not

use in his employment. Wife has some college education in pursuit of a degree in

sociology, but she did not obtain a degree. Rather, she devoted her life to being a caregiver

and homemaker. Husband correctly points out that Wife may be able to receive additional

education or training to obtain a degree or that she could obtain employment in retail

similar to what she had prior to the marriage. Although these possibilities may enable her

to earn some income, we disagree that they show that Wife could be economically

rehabilitated. As discussed above, whether a disadvantaged spouse can be rehabilitated is

measured against the marital standard of living or the other spouse’s post-divorce standard

of living. See Tenn. Code Ann. § 36-5-121(d). We agree with the trial court’s finding that

it would be nearly impossible, even with a degree or retail employment, for Wife to

increase her earning capacity to a reasonable level in light of the high standard of living

the parties enjoyed during the marriage or Husband’s substantial monthly income.

Factor three concerns the length of the marriage; the parties were married for

seventeen years, which constitutes a marriage of reasonably long duration. As for factors

four and five, the parties are of similar age, and both are in good mental and physical health.

In regard to factors six and seven, Wife remains the children’s primary caregiver, in large

part due to Husband’s work and travel schedule. Husband had separate property the trial

court found was “worth $1 million or more,” which far exceeded Wife’s separate property

that the court found was worth “approximately $100,000-$115,000.” The property division

was nearly equal, but the marital assets awarded to each party are not substantial enough

to afford either party the ability to live off the income from those assets.

Factor eight concerns the parties’ standard of living during the marriage. The trial

court found that “[t]he parties lived a very high standard of living during the marriage. . . .

They have driven nice cars, have lived in nice homes, and have taken nice trips and

vacations.” With respect to factor ten, both parties made contributions to the marriage—

Wife as a homemaker and Husband as the wage earner. Finally, regarding factor eleven,

the trial court found Husband to be at fault for the dissolution of the marriage.

Pertaining to her need for alimony, Wife entered into evidence an income and

expense statement claiming she had approximately $19,425 in monthly expenses. The trial

court thoroughly assessed the necessity of each of Wife’s purported expenses and found

that several were excessive. For instance, she claimed rent in the amount of $5,000 when

the home she planned to live in actually had a monthly mortgage of $1,856.84. The court

reduced Wife’s claimed expenses by $6,316.90, leaving her with $13,108.10 in monthly

expenses. Thus, we agree with the trial court that Wife established a need for alimony.

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With respect to Husband’s ability to pay, the only finding made by the trial court

was that he had an average gross monthly income of $25,102. As discussed above,

however, Husband received that amount only if he collected all of the marital song

royalties. The trial court awarded Wife 50% of the marital royalty income, resulting in a

decrease of $4,377 in Husband’s gross monthly income. Therefore, his gross monthly

income was $20,725, not $25,102.

Although Husband earns a substantial income, we are concerned about the lack of

findings by the trial court regarding Husband’s ability to pay alimony in the amount of

$6,000 per month. Husband, like Wife, submitted a statement of income and expenses. In

his statement, Husband claimed to have $17,096.71 in monthly expenses, which left him

with approximately $3,000 per month as disposable income. The trial court stated in its

May 5, 2019 order that it “ha[d] studied carefully each party’s statement of income and

expenses” and then proceeded to make detailed findings concerning the reasonableness of

Wife’s purported expenses. Without making any findings regarding the reasonableness of

Husband’s expenses, the trial court ordered him to pay Wife $6,000 per month in alimony.

“When a trial court fails to make sufficient findings of fact, we are unable to presume there

is a factual basis for the underlying decision . . . .” Cain-Swope, 523 S.W.3d at 99.

Furthermore, the trial court’s insufficient findings of fact, violates a primary purpose of

Tenn. R. Civ. P. 52.01, “which is to facilitate appellate review by ‘affording a reviewing

court a clear understanding of the basis of a trial court’s decision.’” Id. (quoting Lovlace

v. Copley, 418 S.W.3d 1, 34 (Tenn. 2013)).

A review of Husband’s listed expenses shows that his claimed monthly expenditures

included $3,800 for his mortgage payment, $1,183.72 for utilities, $1,253 for insurance,

$3,433 to rent a studio for work, and $2,468 for food, clothing, etc. Consequently, absent

a factual foundation that many of Husband’s expenses are unreasonable, it appears that

ordering Husband to pay $6,000 per month in alimony would create a substantial deficit

for him. We have previously held that a trial court abuses its discretion when “order[ing]

a spouse to pay alimony in an amount that would create a substantial deficit for the obligor

spouse,” especially where there has been no indication that the obligor spouse’s income

and expenses were manipulated or exaggerated. Ezekiel v. Ezekiel, No. W2014-02332-

COA-R3-CV, 2015 WL 4916930, at *7 (Tenn. Ct. App. Aug. 17, 2015); see also Floyd v.

Floyd, No. M2007-02420-COA-R3-CV, 2008 WL 5424014, at *12 (Tenn. Ct. App. Dec.

30, 2008); Hazen v. Hazen, No. W2003-00778-COA-R3-CV, 2004 WL 1334517, at *3

(Tenn. Ct. App. June 14, 2004); Walker v. Walker, No. E2001-01759-COA-R3-CV, 2002

WL 1063948, at *5 (Tenn. Ct. App. May 29, 2002).

In light of the trial court’s failure to make sufficient findings of fact regarding

Husband’s ability to pay the amount of alimony awarded to Wife, we vacate the award of

alimony in the amount of $6,000 per month and remand the case for reconsideration of the

amount of alimony. See Cain-Swope, 523 S.W.3d at 100 (vacating alimony award and

remanding for reconsideration when trial court failed to make sufficient findings of fact

- 18 -

and conclusions of law). The trial court is directed to make findings of fact regarding the

reasonableness of Husband’s expenses, ascertain the amount of alimony he is able to pay,

and enter a judgment setting an appropriate amount of alimony in futuro.6

V. Attorney Fees.

Both Husband and Wife request that they be awarded their attorney fees incurred

on appeal. We may, in appropriate circumstances, “award prevailing parties their legal

expenses incurred on appeal.” Fox v. Fox, No. M2004-02616-COA-R3-CV, 2006 WL

2535407, at *11 (Tenn. Ct. App. Sept. 1, 2006). A decision to award attorney fees on

appeal rests solely within the discretion of this court. Diffie v. Diffie, No. M2018-00267-

COA-R3-CV, 2019 WL 1785683, at *15 (Tenn. Ct. App. Apr. 23, 2019) (citing Willis v.

City of Memphis, 457 S.W.3d. 30, 51 (Tenn. Ct. App. 2014)). When determining whether

to award attorney fees, we 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).

In this case, both parties have been partially successful. Because an award of

attorney fees generally is “withheld when both parties have been at least partially

successful,” we decline to exercise our discretion and deny both parties’ requests for

attorney fees incurred on this appeal. Fox, 2006 WL 2535407, at *11 (citing Smith v.

Smith, 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997); Young v. Young, 971 S.W.2d 386, 393

(Tenn. Ct. App. 1997)).

CONCLUSION

We affirm the trial court’s designation of Wife as the primary residential parent.

We also affirm the trial court’s division of the marital estate as modified in this opinion.

Because the trial court attributed too much income to Husband when determining child

support, the award of child support to Wife in the amount of $1,941 per month is vacated

and remanded for recalculation. Although we affirm the trial court’s decision to award

Wife alimony in futuro, we vacate the award of alimony in the amount of $6,000 per month

and remand for reconsideration after determining Husband’s ability to pay. Costs of this

appeal are assessed equally against the appellant, Kevin Michael Griffin, and the appellee,

Laurel Martin Griffin, for which execution may issue if necessary.

________________________________

ANDY D. BENNETT, JUDGE

6

Due to our decision to vacate the alimony award of $6,000 per month and remand the issue for

reconsideration, Husband’s argument regarding tax considerations is pretermitted.

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