Edna Gergel v. James Gergel

04/26/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 30, 2021 Session

EDNA GERGEL v. JAMES GERGEL

Appeal from the Chancery Court for Anderson County

No. 15CH7132 M. Nichole Cantrell, Chancellor

No. E2020-01534-COA-R3-CV

In this divorce action, the husband appeals the trial court’s distribution of the marital

estate, denial of the husband’s request for alimony in futuro, grant to the wife of sole

decision-making authority over the parties’ minor child, and grants to the wife of

attorney’s fees and discretionary costs. The husband, who received disability benefits for

a prior mental health diagnosis, also appeals the trial court’s finding that he was

voluntarily unemployed and the court’s denial of his motion to strike certain expert

witness testimony. Having determined that an unspecified portion of the discretionary

costs awarded to the wife for fees related to three expert witnesses, one vocational

rehabilitation consultant and two psychiatrists, were not allowable under Tennessee Rule

of Civil Procedure 54.04(2), we vacate the trial court’s award of discretionary costs as to

the fees for these three experts’ work with the exception of $2,070.00 in demonstrably

allowable fees paid to the vocational consultant. We remand for a specific determination

of the fees for these three experts allowable, if any, as an award of discretionary costs to

the wife under Rule 54.04(2). We also modify the trial court’s award of discretionary

costs to the wife for court reporter fees to reduce them slightly pursuant to Rule 54.04(2).

We otherwise affirm the trial court’s judgment. We deny the wife’s request for an award

of attorney’s fees on appeal.

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

Affirmed in Part as Modified, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and KRISTI M. DAVIS, JJ., joined.

Mandy M. Hancock, Knoxville, Tennessee, for the appellant, James Gergel.

Donald Capparella and Kimberly Macdonald, Nashville, Tennessee, for the appellee,

Edna Gergel.

OPINION

I. Factual and Procedural Background

The plaintiff, Edna Gergel (“Wife”), and the defendant, James Gergel

(“Husband”), were married in October 1997. The marriage produced one child, a

daughter (“the Child”), who was thirteen years of age at the time of the divorce decree’s

entry. Both parties are highly educated. Wife holds a doctorate in biochemistry and

molecular cell biology, and Husband holds two master’s degrees, one in chemistry and

one in the philosophy of biochemistry. The parties settled in Oak Ridge, Tennessee, in

2007 when both began working at the Oak Ridge National Laboratory (“ORNL”). At the

time of the divorce decree’s entry, Wife was employed in the Patents Department at

ORNL, earning approximately $138,000.00 per year. Husband had been employed as a

Senior Technical Staff Member in the Computer Science and Mathematics Division at

ORNL, earning approximately $80,000.00, until 2011 when he applied for disability

benefits due to mental health concerns. Husband was subsequently granted Social

Security Disability benefits in April 2013 and also drew long-term disability benefits

through ORNL. At the time of trial, Husband had a gross monthly income of $4,235.60,

or $50,827.20 yearly. In addition, the Child received $893.00 monthly, paid to Wife, in

Social Security benefits due to Husband’s disability.

On April 28, 2015, Wife filed a complaint for divorce in the Anderson County

Chancery Court (“trial court”), alleging as grounds irreconcilable differences or, in the

alternative, inappropriate marital conduct. See Tenn. Code Ann. § 36-4-101(14), (11)

(2021). Wife requested child support pendente lite and reasonable attorney’s fees in the

event that the parties were unable to reach an agreement. Wife vacated the marital

residence, taking the Child with her, in May 2015, moving into the maternal

grandmother’s residence. Wife remained employed at ORNL.

Husband filed an answer and counter-complaint on June 16, 2015, requesting

dismissal of Wife’s complaint and a divorce on his alleged grounds of abandonment and

cruel and inhuman treatment. See Tenn. Code Ann. § 36-4-101 (13), (11). He also

alleged parental alienation and requested custody of the Child, child support, spousal

support, an award of the marital residence and its contents, and attorney’s fees for

defending against the complaint. Wife filed an answer to the counter-complaint on July

9, 2015, denying all substantive allegations. The complaint, counter-complaint, and

contemporaneous motions filed respectively by the parties indicate that each party filed a

proposed parenting plan, although neither is in the appellate record as an attachment to a

pleading. It is clear from the pleadings that Wife was requesting that Husband have zero

days of co-parenting time due to his alleged “mental instability.”

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Records and expert opinions concerning Husband’s mental state were at issue

throughout the pendency of the divorce and at trial. In the April 2013 decision issued by

the Social Security Administration, presented as an exhibit at trial in the instant action,

Husband was granted disability benefits upon a finding, in part, that he had “1) [m]ajor

depressive disorder, recurrent, moderate-to-severe with psychotic features, and 2) anxiety

disorder.” Upon a motion filed by Wife, the trial court entered an “Agreed Order for

Release of Privileged Information” on August 17, 2015, directing that “[a]ll mental health

and psychological [records] of [Husband] shall be made available to counsel for [Wife].”

The trial court concomitantly entered an “Agreed Protective Order,” directing that any

records concerning the parties not be released for any use other than in the instant action.

On November 6, 2015, the trial court entered an agreed interim order, dismissing

an ex parte order of protection that had been entered against Husband and entering

instead a mutual temporary restraining order, as well as a temporary parenting plan. The

temporary parenting plan granted to Husband co-parenting time on alternate Saturday and

Sunday afternoons and Wednesday evenings, provided that the co-parenting occur

“somewhere other than the marital home” and that the Child be fed and her homework

completed before she was returned to Wife. This order was subsequently “restated” in

December 2015. A mediator’s report was filed on November 30, 2015, indicating that no

issues were resolved.

Upon Husband’s motion and in an agreed order entered on June 7, 2016, the trial

court, inter alia, appointed attorney Kelly Wojciechowski as a guardian ad litem

(“GAL”) to represent the Child’s best interest. The court subsequently entered an order

setting forth the parties’ agreement concerning the GAL’s access to the Child, other

individuals, and information she would need to represent the Child, as well as the parties’

agreement that they would equally split the GAL’s fees. On May 2, 2017, Husband filed

a motion to expand his co-parenting time. Wife filed a response objecting to Husband’s

motion, alleging that Husband suffered from “severe mental illness,” the symptoms of

which included repeated suicidal attempts and threats; “delusional thinking, hearing

voices, writing and verbalizing, including writing on the walls of the marital home such

as ‘chop it off’”; physical and verbal harassment of Wife; hoarding in the marital

residence; “[i]nability to stay awake or to maintain a schedule”; and “[i]nability to control

his impulses.” Following a hearing conducted in May 2017, the trial court entered an

order on August 28, 2017, denying Husband’s motion for expanded co-parenting time.

In its June 2016 agreed order, the trial court had also appointed Dr. Susan Koller

as Wife’s “witness to conduct a forensic psychological evaluation of [Husband].” In a

subsequent agreed order entered on June 19, 2017, the court released Dr. Koller and

appointed Peter B. Young, Ph.D., as Wife’s expert witness to conduct Husband’s forensic

psychological evaluation. Following submission of Dr. Young’s psychological

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evaluation of Husband and Dr. Young’s deposition, as well as the deposition of Michael

A. Fisher, M.D., who was Husband’s treating psychiatrist, the trial court conducted an in-

chambers status conference on May 3, 2018. The court then entered an order on May 24,

2018, establishing supervised visitation for Husband with the Child at The Assurance

Group. In this order, the court also provided that Husband could continue telephone and

video contact with the Child and that he could attend school and public events at which

the Child was in attendance. The court specifically precluded Husband from driving with

the Child in the vehicle due to concerns for the Child’s safety.

On November 28, 2018, Husband filed a motion in limine requesting that Dr.

Young’s deposition testimony and report be excluded. Husband averred that contrary to

Dr. Young’s assertion during his deposition testimony, taken on December 12, 2017, that

he had never had any complaints lodged against him, the Tennessee Board of Examiners

in Psychology had entered a consent order on December 7, 2017, suspending Dr.

Young’s license, effective thirty days following entry of the order, due to two

disciplinary complaints unrelated to this action. Husband attached a copy of the

December 2017 consent order to his motion. Wife filed a reply, acknowledging that Dr.

Young’s testimony stating that he had not had disciplinary action taken against him had

been “patently untrue” while arguing that Dr. Young’s impaired credibility was irrelevant

to his testimony and report in this case. Wife also filed a motion requesting that the court

order Husband to provide various financial records and order the production of records of

Husband’s treatment by Shawn Foster Roach, a licensed clinical social worker (“LCSW

Roach”). Wife averred that Dr. Fisher had relied upon LCSW Roach’s records in treating

Husband. On November 30, 2018, Wife filed a motion for sanctions, pursuant to

Tennessee Rule of Civil Procedure 37, alleging that Husband had failed to provide

financial and healthcare records as ordered and had dissipated marital assets.

Following a hearing, the trial court entered an order on December 17, 2018,

denying Husband’s motion to strike Dr. Young’s report and testimony, stating that it

would afford such “the weight the Court deems indicated.” The court also denied a

motion to continue that had been filed by Husband. The court granted Wife’s motion for

sanctions, reiterating a prior directive that Husband was to comply with discovery

requests and “update and/or tender his financial records, and address the withdrawals

from his banking accounts,” as well as “sign the proposed Healthcare and Financial

Records Orders” and HIPAA releases for his psychotherapy notes and healthcare records.

The healthcare and financial records orders were subsequently signed by both parties’

counsel and entered.

The court also directed in its December 17, 2018 order that the Child, if called to

testify, would do so in chambers “with only the court reporter, counsel for the parties, the

Guardian Ad Litem, and chancellor present.” On March 25, 2019, Husband filed a

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motion for unsupervised visitation with the Child, which Wife opposed. Following a

hearing, the trial court denied Husband’s motion for unsupervised visitation in an order

entered on April 29, 2019, stating that the court “prefer[red] to hear psychological proof

before considering changing the present schedule and/or method of co-parenting time.”

The court also found “no substantial harm” to the Child “resulting from maintaining the

present co-parenting restrictions” until the trial scheduled for May 2019.

In the meantime, following various subsequent motions and a hearing, the trial

court entered an order on March 15, 2019, pursuant to Tennessee Rule of Civil Procedure

35, delineating the procedure to be followed concerning the sharing and protection of

information related to Husband’s psychological evaluations. The trial court subsequently

entered a series of orders setting forth the procedure for discovery related to a

psychological evaluation conducted by Catherine Grello, Ph.D., who had been retained

by Father as an expert witness. In April 2019, Wife filed two motions concerning Dr.

Grello, first requesting that the trial court issue a protective order quashing Dr. Grello’s

noticed deposition and then requesting that Dr. Grello’s deposition testimony be limited

to her report. In support of these motions, Wife averred in part that Dr. Grello’s opinions

had been sent without any substantiating materials to allow complete preparation of

cross-examination. Following hearings, the trial court entered an order on April 30,

2018, inter alia, denying Wife’s motion to quash while limiting Dr. Grello’s deposition

testimony to the scope of the report that she had issued on April 8, 2019. The court also

conducted an in camera review of Dr. Grello’s communication file in relation to Husband

and entered an order on May 8, 2019, inter alia, releasing email communications

contained in the file to counsel for both parties.

The trial court conducted a hearing concerning various motions on May 13, 2019.

Upon a motion filed by the Tennessee Department of Children’s Services (“DCS”) to

quash a subpoena issued by Wife, the trial court entered an order on the day of the

hearing, denying the motion as to two pages of DCS notes, taken in December 2013, that

the court found should be released to the parties’ counsel. The court later cited these

notes in its final decree in stating that the Child had reported during a meeting with a

DCS worker that she had heard Husband threaten to kill Wife.

On May 14, 2019, the trial court entered an order denying a motion filed by Wife

to exclude Husband’s request for alimony upon the court’s finding that Husband had

“made a general request for Spousal Support in paragraph six of his counter complaint

sufficient as to put [Wife] on notice that alimony would be an issue in the pending

lawsuit.” In the same order, the court also denied a motion filed by Wife to exclude any

testimony presented by Dr. Fisher regarding Husband’s ability to work upon the court’s

finding that “Dr. Fisher’s conclusions and expert opinions regarding how [Husband’s]

psychological state place any limitation or restrictions on his ability to work, fall within

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the expert witness’s area of expertise.” The trial court also entered an “Amended Rule 35

Order” on April 1, 2019, appointing Phil Kronk, Ph.D., “as the Court’s expert to evaluate

[Husband] regarding any mental conditions he may have that regard his ability to parent

and alleged inability to work.” However, in a subsequent order, the trial court noted that

Dr. Kronk had been unable to accept the appointment.

The trial court conducted the first three days of the bench trial on May 22 through

24, 2019, during which Wife presented her case and Husband’s counsel, on the last day,

conducted direct examination of Husband. Prior to trial, the court entered an order on

May 14, 2019, denying motions that had been filed by Wife in which she had requested a

finding that Husband had not sufficiently pled his alimony request and an order

precluding testimony from Dr. Fisher concerning Husband’s ability to maintain

employment. We note that in his counter-complaint, Husband did not specify the amount

or type of spousal support he was requesting. During his testimony at trial, Husband

confirmed that he was seeking $2,200.00 in monthly alimony as ongoing support.

Upon a subsequent motion filed by Wife to strike the deposition testimony of Dr.

Grello and a motion filed by Husband to quash requests for admissions promulgated by

him, the trial court, following a hearing, entered orders on July 8 and 16, 2019,

respectively denying Wife’s motion to strike while sustaining Husband’s motion to

quash. Dr. Grello had testified via deposition on May 18, 2019, four days prior to the

beginning of trial. Wife asserted in her motion that Dr. Grello had not confined her

testimony to her report as the court had previously ordered and that she had delayed in

producing multiple materials, including results of testing administered to Husband. In its

July 8, 2019 order, the court determined that it would give Dr. Grello’s testimony “such

weight as the Court deems it entitled” despite finding that Husband had not provided Dr.

Grello with all of his relevant records and had failed to inform her of a “secondary gain”

issue in that he was seeking alimony. Dr. Grello did not testify at trial.

After reviewing the deposition testimonies of Dr. Fisher, Dr. Young, and Dr.

Grello, the trial court conducted a hearing on July 22, 2019, in which the court expressed

uncertainty concerning Husband’s competency to resume trial and sought the opinions of

the parties’ counsel and the GAL. The court entered an order on August 20, 2019, sua

sponte continuing the proceedings, particularly the cross-examination and any redirect

examination of Husband and of a vocational rehabilitation consultant, called as a witness

by Wife, A. Bently Hankins, Ph.D. The court appointed J. Sidney Alexander, M.D., as a

Rule 35 mental health expert to evaluate Husband’s competency to participate in the

instant litigation and to determine whether Husband required a conservator or guardian

ad litem in order to participate. Following his evaluation, Dr. Alexander subsequently

submitted a report in which he found Husband competent to participate in the

proceedings without the benefit of a conservator or guardian ad litem. In his report, Dr.

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Alexander also concluded that although Husband had “a history of over endorsing

psychiatric symptoms on psychological testing, which may be consistent with a tendency

to exaggerate,” “[t]here is no doubt [Husband] has a serious mental illness,

Schizoaffective Disorder or Schizophrenia, which has produced a plethora of serious

symptoms in him, regardless.”

The trial court resumed the trial over the span of three days from November 12

through 14, 2019. On the second of these three days, Dr. Alexander testified, confirming

his written report concerning Husband’s competency but otherwise amending his opinion

concerning Husband’s mental condition. Dr. Alexander explained that he had first

interviewed Husband on October 25, 2019, and administered two tests to him, the

Structured Inventory of Malingering Symptomology (“SIMS”) and the Central Nervous

System Vital Signs test (“CNSVS”). He then submitted his written report, dated

November 1, 2019. Dr. Alexander subsequently interviewed Husband a second time and

administered the CNSVS again on November 11, 2019. Testifying that he had

“continued to read records and ponder things,” including the depositions of Dr. Young

and Dr. Grello, which he had not reviewed prior to writing his report, Dr. Alexander

stated that he had concluded that Husband was malingering. Dr. Alexander defined

malingering as “purposely exaggerating or falsifying or feigning symptoms in order to

obtain something.”

Husband filed a motion to strike Dr. Alexander’s and Dr. Hankins’s testimonies on

November 14, 2019, the last day of trial. In a ruling issued at the close of the November

14 session, the trial court denied the motion to strike. The court’s ruling was

memorialized in an order entered on December 6, 2019, in which the court stated in part

that Husband would be “afforded an opportunity to prepare to cross examine Dr.

Alexander at [Husband’s] convenience by deposition, or live testimony December 6,

2019, when the Court shall recommence this litigation.” The bench trial then concluded

with a hearing on December 6, 2019, during which Husband’s counsel stated that a court

reporter was preparing a transcript of a deposition taken of Dr. Alexander by the parties’

counsel on the preceding day and that the transcript would be provided to the court.

During the final day of trial, the court heard Husband’s rebuttal testimony and closing

arguments.

The trial court entered its “Final Decree” on February 26, 2020, granting to Wife a

divorce on the ground of inappropriate marital conduct upon a specific finding that

Husband had been physically and verbally abusive toward Wife. The court included in

its decree specific sections addressing each party’s respective credibility and Husband’s

mental health. The court found Wife to be “generally very credible” and noted that “she

had done her due diligence in carefully compiling information to give a factual basis of

her testimony.” However, the court found that Husband “was not credible as a witness”

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and that “[h]is answers were often in direct contradiction to the proof being offered.”

The court specifically found that Husband’s credibility had been negatively affected by

his testimony that “he was in complete compliance with his medication,” which the court

found to be “controverted by his own treating physician”; his “repeated claims that he

was the victim of physical abuse by his wife”; his asking the court for a continuance to

undergo a supposedly scheduled surgery that the court later discovered was neither

scheduled nor performed; and his attempts to deflect questions during cross-examination

and redirect them “to what he wanted to talk about instead.”

Regarding Husband’s mental health, the trial court particularly credited Dr.

Alexander’s testimony and considered the testimony of Dr. Hankins and the records from

other mental health providers, including reports and records from Dr. Grello; Dr.

Hankins; Dr. Fisher; Dr. Young; and Audrea K. Merchant, M.D., Husband’s current

treating psychiatrist since January 2019. The court ultimately concluded as to Husband’s

mental health condition, particularly as it related to what the court termed Husband’s

“secondary gain motivation” in requesting alimony:

This was a very in depth review of the numerous observations,

attempts at diagnosis and test results of [Husband]. The court concludes

from all of this that [Husband] has a secondary gain motivation for “faking

bad” in this case. This court concludes that he has had a secondary gain

motivation for faking bad since 2011 when he sought disability instead of

returning to a normal work schedule at ORNL. This court concludes based

on the numerous test results and opinions of the experts in this case that

[Husband] is guilty of malingering and exaggerating his mental health

systems. This was not discovered until this divorce case because none of

his treating physician[s] ever sought psychological testing for [Husband];

instead they simply relied on his own self-reporting of symptoms. Now

that the testing has been conducted it is clear to this court that [Husband] is

malingering and exaggerating due to his secondary gain motivation. This

court also concludes that [Husband] has the ability and functional capacity

to return to work at his previous employment or a job of similar skill set.

This court adopts the conclusion that [Husband’s] not working is a matter

of his own lack of motivation to do so and not a result of some

psychological impairment.

In delineating what it found to be an equitable distribution of the marital estate, the

trial court set forth a chart of assets and debts awarded respectively to the parties. The

court found only a few items of personal property to be separate property that had been

gifted to Wife. As noted by Wife on appeal, the ultimate distribution was nearly equal

with 50.2% of the estate, valued at $468,300.88, awarded to Wife and 49.8%, valued at

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$464,000.84, awarded to Husband. The court awarded the marital residence and

associated debt to Husband. The court found that each party should retain his or her own

ORNL pension account, with Wife’s account valued at $1,839.89 per month assuming

retirement at age sixty-five while Husband’s account was valued at $1,130.62 per month

assuming retirement at age sixty-five. The parties were both approximately forty-nine

years of age at the time of trial. As to dissipation, the court assessed Husband with

dissipation of the marital assets in the amount of $20,000.00 in funds withdrawn from a

joint checking account during the pendency of the divorce and in the amount of

$45,000.00 for unreasonably increasing the parties’ attorney’s fees.

Concerning alimony, the trial court analyzed the factors provided in Tennessee

Code Annotated § 36-5-121(i) to find that Wife did not have the ability to pay alimony

and that Husband had the ability to resume employment and did not require alimony.

The court concluded in this regard:

The court finds that based on the fault of the parties in this divorce

case, the fact that this court has concluded that [Husband] has the ability to

work and chooses not to do so, finding [him] voluntarily unemployed, as

well as [Husband’s] receiving some $432,511.70 in marital assets this court

finds that [Husband] will not be awarded the requested alimony in this case.

The trial court incorporated a permanent parenting plan order (“PPP”) into the

final decree, designating Wife as the primary residential parent of the Child and awarding

unsupervised visitation to Husband on every Saturday afternoon and one weekday

evening each week to take place only in a public place. The court precluded overnight

co-parenting time for Husband to ensure that the Child would not be exposed to what the

court found to be Husband’s unsafe hoarding in the marital residence. The court awarded

no child support, finding that the Child’s receipt of Social Security benefits through

Husband was sufficient to tax Husband with no further obligation. Husband

subsequently filed a motion to alter or amend the PPP, requesting, as pertinent on appeal,

that the court assign joint decision-making authority over the Child to the parties.

Following a hearing, the court denied Husband’s motion to alter or amend the decision-

making authority in an order entered on July 27, 2020. In the same order, the court

denied Husband’s post-judgment request for an award of attorney’s fees and

discretionary costs.

The trial court subsequently entered additional post-judgment orders pertinent to

issues raised on appeal. Upon Wife’s motion filed pursuant to Tennessee Rules of Civil

Procedure 59 and 60, the court awarded her $65,000.00 in attorney’s fees based on

Tennessee Code Annotated § 36-5-103(c) in an order entered on August 10, 2020. In the

same order, the court granted Wife’s post-judgment motion for discretionary costs,

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pursuant to Tennessee Rule of Civil Procedure 54.04, awarding to her $10,813.30 in

court reporter fees; $44,166.85 in expert witness fees; and $656.90 in interpreter fees. In

a post-judgment order addressing discretionary costs, the court initially assessed Husband

with the full amount of the $20,520.00 in fees that the court found were reasonably due to

the GAL. However, the court later amended this order to split the GAL’s fees equally

between the parties as had been originally set forth in an agreed order. On October 16,

2020, the trial court entered an order, following an online conference, finding, inter alia,

that Wife’s counsel’s fees were reasonable and directing entry of the order as a final

order pursuant to Tennessee Rule of Civil Procedure 54.02(1). Husband timely

appealed.1

II. Issues Presented

On appeal, Husband presents six issues, which we have restated and reordered

slightly as follows:

1. Whether the trial court erred in the division of the marital estate.

2. Whether the trial court erred in appointing a certain expert and

allowing certain expert testimony.

3. Whether the trial court erred by denying Husband’s request for

alimony.

4. Whether the trial court erred by granting to Wife sole decision-

making authority over the Child.

5. Whether the trial court erred by granting to Wife reasonable

attorney’s fees.

6. Whether the trial court erred by granting to Wife discretionary costs.

Wife has raised four additional issues, which we have condensed and restated as follows:2

1

In an order entered on November 2, 2020, prompted by Wife’s post-judgment motion for criminal

contempt, the trial court found Husband to be in criminal contempt for failing to timely make three

mortgage payments on the marital residence and failing to hold Wife harmless for the mortgage debt. The

court sanctioned Husband with a $150.00 fine. Husband has not raised an issue on appeal regarding this

contempt finding.

2

In her statement of the issues, Wife has included more specific statements of the underlying arguments

within Husband’s stated issues. We do not find these necessary to include in our “Issues Presented”

section and will address Wife’s waiver argument concerning Husband’s purported lack of specificity in a

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7. Whether Husband has waived all of his issues on appeal by failing to

state them more specifically.

8. Whether Husband has waived his issue regarding expert witness

testimony by failing to timely raise it before the trial court.

9. Whether Husband has waived his requests for attorney’s fees at trial

and on appeal by failing to specify each as a separate issue in his

statement of the issues.

10. Whether Wife is entitled to attorney’s fees on appeal either for

defending against Husband’s challenge to the trial court’s permanent

parenting plan order, pursuant to Tennessee Code Annotated § 36-5-

103(c), or for defending against a frivolous appeal, pursuant to

Tennessee Code Annotated § 27-1-122.

III. Standard of Review

In a case involving the proper classification and distribution of assets incident to a

divorce, our Supreme Court has explained the applicable standard of appellate review as

follows:

This Court gives great weight to the decisions of the trial court in

dividing marital assets and “we are disinclined to disturb the trial court’s

decision unless the distribution lacks proper evidentiary support or results

in some error of law or misapplication of statutory requirements and

procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.

1996). As such, when dealing with the trial court’s findings of fact, we

review the record de novo with a presumption of correctness, and we must

honor those findings unless there is evidence which preponderates to the

contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position

than this Court to observe the demeanor of the witnesses, the weight, faith,

and credit to be given witnesses’ testimony lies in the first instance with the

trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.

1991). Consequently, where issues of credibility and weight of testimony

are involved, this Court will accord considerable deference to the trial

court’s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.

subsequent section of this Opinion. Additionally, we will address waiver arguments raised by Wife

concerning lack of citation to authority within our analyses of the pertinent individual issues.

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App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984

S.W.2d 912, 915 (Tenn. 1999)). The trial court’s conclusions of law,

however, are accorded no presumption of correctness. Langschmidt v.

Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). See Manis v. Manis, 49 S.W.3d 295,

306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of

marital property “ordinarily defer to the trial judge’s decision unless it is inconsistent

with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance

of the evidence.”).

Regarding spousal support, our Supreme Court has “repeatedly . . . observ[ed] that

trial courts have broad discretion to determine whether spousal support is needed and, if

so, the nature, amount, and duration of the award.” Gonsewski v. Gonsewski, 350 S.W.3d

99, 105 (Tenn. 2011). The High Court has further explained:

[A] trial court’s decision regarding spousal support is factually driven and

involves the careful balancing of many factors. Kinard v. Kinard, 986

S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew [v. Burlew], 40

S.W.3d [465,] 470 [(Tenn. 2004)]; Robertson v. Robertson, 76 S.W.3d 337,

340-41 (Tenn. 2002). As a result, “[a]ppellate courts are generally

disinclined to second-guess a trial judge’s spousal support decision.”

Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in

reviewing an award of spousal support is to determine whether the trial

court applied the correct legal standard and reached a decision that is not

clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220

(Tenn. 2006). Appellate courts decline to second-guess a trial court’s

decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An

abuse of discretion occurs when the trial court causes an injustice by

applying an incorrect legal standard, reaches an illogical result, resolves the

case on a clearly erroneous assessment of the evidence, or relies on

reasoning that causes an injustice. Wright ex rel. Wright v. Wright, 337

S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328,

335 (Tenn. 2010). This standard does not permit an appellate court to

substitute its judgment for that of the trial court, but “‘reflects an awareness

that the decision being reviewed involved a choice among several

acceptable alternatives,’ and thus ‘envisions a less rigorous review of the

lower court’s decision and a decreased likelihood that the decision will be

reversed on appeal.’” Henderson, 318 S.W.3d at 335 (quoting Lee

Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

Consequently, when reviewing a discretionary decision by the trial court,

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such as an alimony determination, the appellate court should presume that

the decision is correct and should review the evidence in the light most

favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318

S.W.3d at 335.

Id. at 105-06 (footnotes omitted).

As to our review of the trial court’s decision concerning attorney’s fees in a

divorce action, this Court has stated:

Our review of an award of attorney’s fees is guided by the principle that

“‘the allowance of attorney’s fees is largely in the discretion of the trial

court, and the appellate court will not interfere except upon a clear showing

of abuse of that discretion.’” Mimms v. Mimms, 234 S.W.3d 634, 641

(Tenn. Ct. App. 2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359

(Tenn. 2005)). “Reversal of the trial court’s decision [regarding] attorney

fees at the trial level should occur ‘only when the trial court applies an

incorrect legal standard, reaches a decision that is illogical, bases its

decision on a clearly erroneous assessment of the evidence, or employs

reasoning that causes an injustice to the complaining party.’” Church v.

Church, 346 S.W.3d 474, 487 (Tenn. Ct. App. 2010).

Hernandez v. Hernandez, No. E2012-02056-COA-R3-CV, 2013 WL 5436752, at *8

(Tenn. Ct. App. Sept. 27, 2013).

Likewise, a trial court’s decision to include or exclude an expert witness’s

testimony is reviewed for an abuse of discretion. See Brown v. Crown Equip. Corp., 181

S.W.3d 268, 275 (Tenn. 2005); Jernigan v. Paasche, 637 S.W.3d 746, 756 (Tenn. Ct.

App. 2021). Furthermore, the “weight of the theories and the resolution of legitimate but

competing expert opinions are matters entrusted to the trier of fact.” Brown, 181 S.W.3d

at 275. “Expert testimony is not conclusive, even if uncontradicted, but is rather purely

advisory in character, and the trier of fact may place whatever weight it chooses on such

testimony.” Thurmon v. Sellers, 62 S.W.3d 145, 162 (Tenn. Ct. App. 2001). “Moreover,

it is within the discretion of the trial judge to conclude that the opinion of certain experts

should be accepted over that of other experts and that it contains the more probable

explanation.” Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-77 (Tenn. 1983).

Additionally, this Court reviews a trial court’s determination of an appropriate

parenting plan according to an abuse of discretion standard. “[C]ustody and visitation

arrangements are among the most important decisions confronting a trial court in a

divorce case. The needs of the children are paramount; while the desires of the parents

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are secondary.” Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). As this

Court stated in Gaskill:

Custody and visitation determinations often hinge on subtle factors,

including the parents’ demeanor and credibility during the divorce

proceedings themselves. Accordingly, appellate courts are reluctant to

second-guess a trial court’s decisions. Trial courts must be able to exercise

broad discretion in these matters, but they still must base their decisions on

the proof and upon the appropriate application of the applicable principles

of law.

Id. at 631.

IV. Waiver and Issue Statements

As a threshold matter, we consider Wife’s contention that Husband has waived all

of his issues on appeal in part by failing to state them more specifically in his statement

of the issues. In her responsive brief, Wife has restated Husband’s issues by delineating

the specific arguments made by Husband in the argument section of his principal brief.

Wife then essentially posits that Husband should have crafted his issues in this detailed

manner in his statement of the issues and that because he did not, the issues are waived.

In his reply brief, Husband has incorporated the more detailed issues as stated by Wife

while arguing that his initial issue statements were sufficiently specific so as to avoid

waiver. Upon careful review, we agree with Husband on this point and determine that he

has not waived the issues included in his statement of the issues by failing to state them

more specifically.3

Tennessee Rule of Appellate Procedure 27 sets forth the content of briefs

submitted on appeal. The appellant’s brief is required to contain “[a] statement of the

issues presented for review.” Tenn. R. App. P. 27(a)(4). If the appellee “is also

requesting relief from the judgment,” the appellee’s brief “shall contain the issues and

arguments involved in [her] request for relief . . . .” Tenn. R. App. P. 27(b).

3

Wife argues that Husband waived his requests for attorney’s fees at trial and on appeal by failing to

specify each in his statement of the issues. We determine that Husband clearly raised the issue of

attorney’s fees at trial in his statement of the issues. However, Husband requested attorney’s fees on

appeal solely in the conclusion of his brief and did not include that issue in his statement of the issues.

We therefore determine Husband’s requests for attorney’s fees on appeal to be waived. See, e.g., Brunetz

v. Brunetz, 573 S.W.3d 173, 185-86 (Tenn. Ct. App. 2018) (concluding that both parties in a divorce

action had waived their respective requests for attorney’s fees on appeal by raising the issue solely in the

argument sections of their briefs and not in their statements of the issues). We will address the issue of

attorney’s fees on appeal in more detail in a subsequent section of this Opinion.

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Within the context of an application for review to our Supreme Court, our High Court has

explained the importance of a statement of the issues in an appellate brief:

Appellate review is generally limited to the issues that have been

presented for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d

349, 353 (Tenn. 2007). Accordingly, the Advisory Commission on the

Rules of Practice and Procedure has emphasized that briefs should “be

oriented toward a statement of the issues presented in a case and the

arguments in support thereof.” Tenn. R. App. P. 27, advisory comm’n cmt.

Appellants and parties seeking relief under Tenn. R. App. P. 11 must

include in their application for permission to appeal and in their brief a

statement of the issues they desire to present to the court and an argument

with respect to each of the issues presented. The issues should be framed

as specifically as the nature of the error will permit in order to avoid any

potential risk of waiver. Fahey v. Eldridge, 46 S.W.3d 138, 143-44 (Tenn.

2001); State v. Williams, 914 S.W.2d [940,] 948 [(Tenn. Crim. App. 1995)].

Hodge v. Craig, 382 S.W.3d 325, 334-35 (Tenn. 2012).

Likewise, this Court has repeatedly held that an issue may be waived if it is not

included in the statement of the issues. See, e.g., Logan v. Estate of Cannon, 602 S.W.3d

363, 383 n.4 (Tenn. Ct. App. 2019) (determining, in a second appeal before this Court,

that an issue from the first appeal for which the appellees stated they were “renew[ing] all

objection” was waived because the appellees had not raised it in their statement of the

issues); In re Conservatorship of Osborn, No. M2020-01447-COA-R3-CV, 2021 WL

5144547, at *8 (Tenn. Ct. App. Nov. 5, 2021) (determining the appellants’ argument

concerning personal jurisdiction to be waived because it was not included in their issue

statement raising violation of due process); Himes v. Himes, No. M2019-01344-COA-

R3-CV, 2021 WL 1546961, at *8 n.5 (Tenn. Ct. App. Apr. 20, 2021) (determining that

the appellant husband had waived his request for attorney’s fees on appeal when he had

stated the request solely in the conclusion of his brief and did not include it in his

statement of the issues). In contrast to the examples cited here, Husband has clearly

stated the issues raised in his statement of the issues.

In support of her specific waiver argument concerning Husband’s issue regarding

the division of the marital estate, Wife relies on this Court’s decision in Irvin v. Irvin, No.

M2011-02424-COA-R3-CV, 2012 WL 5993756 (Tenn. Ct. App. Nov. 30, 2012). In the

instant action, Wife asserts that because Husband did not include the two specific errors

he alleges in his argument section for this issue, namely the trial court’s division of the

parties’ respective retirement plans and the court’s assessment of dissipation against

Husband, his stated issue of whether the trial court erred in the equitable division of the

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marital estate should be waived. In Irvin, the appellant husband raised the trial court’s

division of the marital property as an issue, detailing two purported errors in the division.

Irvin, 2012 WL 5993756, at *13. In her statement of the issues, the appellee wife stated,

“‘The trial court made two errors in its division of the marital estate,’” subsequently

identifying two different alleged distribution errors in the argument section of her brief.

Id. at *24 n.20. This Court determined that the wife’s statement of the issues was

“inadequate because it [did] not identify the ‘two errors’ she [sought] to assert.” Id.

However, “based on the circumstances of [the] case,” this Court “exercise[d] [its]

discretion to address the issues raised by Wife in the Argument portion of her appellate

brief.” Id.

As in Irvin, we find that it would have been preferable if Husband in the instant

action had immediately informed this Court as to “‘what questions [it was] supposed to

answer’” regarding the division of the marital estate by identifying the two alleged errors

in his statement of the issues. See id. (quoting Hodge, 382 S.W.3d at 334). However,

exercising our discretion under the circumstances of this case, we likewise determine that

Husband has not waived the issue of the trial court’s division of the marital estate by

failing to state these specific sub-issues in his statement of the issues.

Moreover, although the strands of Husband’s specific arguments are not woven

into his other issue statements, the statements do accurately reflect his overarching

challenge to the trial court’s findings on each issue. As Husband notes in his reply brief,

Wife has relied in great part on critiques of “the art of drafting issues for appeal.” Having

carefully reviewed each of Husband’s stated issues and related arguments, we find no

reason to deem any of his stated issues waived.

Wife also contends that Husband has waived his issue regarding expert witness

testimony by failing to raise timely objections before the trial court and that Husband has

waived his issues concerning the division of pension funds and the award to Wife of

attorney’s fees at trial by failing to adequately cite to authority on appeal. We will

address these waiver arguments within the applicable issue sections of this Opinion. At

this threshold point, we reiterate our determination that Husband has not waived any of

the issues stated in his statement of the issues through the manner in which he has stated

them.

V. Equitable Distribution of Marital Estate

Husband contends that the trial court erred in its distribution of the marital estate

by (1) taxing Husband with a total of $65,000.00 in dissipation of marital assets and (2)

inequitably dividing the parties’ respective pension accounts. Wife asserts that the trial

court properly found dissipation when Husband failed to account for $20,000.00 in

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withdrawals from the parties’ joint account during the pendency of the divorce and when

Husband caused what the court found to be a $45,000.00 increase in attorney’s fees that

could have been avoided if not for Husband’s misconduct and delays. As to Husband’s

pension argument, Wife posits that Husband has waived the argument by failing to

adequately cite to authority and that, in any case, the division of the pension plans was

within the trial court’s discretion when equitably distributing the marital estate. We do

not find that Husband has waived any part of his argument concerning the distribution of

the marital estate. However, upon a thorough review of the record and applicable

authorities, we determine that the trial court’s distribution of the marital estate was

equitable.

Tennessee Code Annotated § 36-4-121(c) provides statutory factors to be

considered as guidance for determining an equitable division of marital property. In its

final decree, the trial court set forth specific findings of fact applicable to each statutory

factor. However, the court considered the statutory factors as they were provided in the

version of Tennessee Code Annotated § 36-4-121(c) (2021) in effect at the time of trial,

rather than the version in effect when the instant complaint was filed and therefore

governing this action. See Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn.

1998) (“Statutes are presumed to operate prospectively unless the legislature clearly

indicates otherwise.”). Inasmuch as the only factor added to the statute by a subsequent

amendment was one the trial court found to be inapplicable to this case, the distinction is

one involving the numbering of factors only and constitutes harmless error. Effective

July 1, 2017, the General Assembly amended Tennessee Code Annotated § 36-4-121(c)

by adding a new subdivision (10) addressing valuation of a “closely held business or

similar asset” and renumbering the subsequent subdivisions. See 2017 Tenn. Pub. Acts,

Ch. 309, § 1 (H.B. 348). The trial court’s reference below to the inapplicability of factor

(10) therefore refers to a factor (10) that was not in effect when the instant action was

filed. See Tenn. Code Ann. § 36-4-121(c) (2014). Likewise, the court’s reference to

factor (11) concerning social security benefits refers to the factor that was codified as

(10) in the version applicable to this action. See id.4

4

We note that effective March 31, 2022, the General Assembly has amended Tennessee Code Annotated

§ 36-4-121(c) to add the following subdivision as new factor to be considered when considering the

equitable distribution of marital property:

The total amount of attorney fees and expenses paid by each party in connection with the

proceedings; whether the attorney fees and expenses were paid from marital property,

separate property, or funds borrowed by a party; and the reasonableness, under the factors

set forth in Rule 1.5 of the Tennessee Rules of Professional Conduct, and necessity of the

attorney fees and expenses paid by each party[.]

See 2022 Tenn. Pub. Acts, Ch. 767, § 6 (S.B. 2385).

- 17 -

The trial court specifically found:

Under T.C.A. § 36-4-121 this Court must make an equitable division

of the parties’ assets and debts without regard to fault prior to determining

if any award of alimony or spousal support is warranted. There are several

factors listed under T.C.A. § 36-4-121(c) that this court must consider when

making an equitable distribution.

(1) The duration of the marriage.

These parties were married in 1997 making this a twenty-two (22)

yearlong marriage. The parties separated in 2015 and the divorce has been

pending since 2015, so the parties resided together for 18 years.

(2) The age, physical and mental health, vocation[al] skills,

employability, earning capacity, estate, financial liabilities and

financial needs of each of the parties.

The parties are of similar age and vocation[al] skills. Based on the

Court’s previous findings regarding [Husband’s] alleged mental illness, this

court finds that both parties are employable and have similar earning

capacity. All of the parties’ financial liabilities are marital which are

subject to distribution in this divorce case. The court finds that currently

[Husband] is receiving $4,187.[60] dollars in long term disability and social

security disability, yet has the capacity and ability to earn more should he

return to work.

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

education, training or increased earning power of the other

party.

Both of these parties have a high degree of education. Both parties

were in graduate school when the parties married. There is no evidence

that either party significantly contributed to the education of the other.

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

capital assets and income.

Based on the expert opinion given in this case this court concludes

that both parties are highly educat[ed] and were both employed at ORNL.

[Husband] is currently drawing disability; however the proof has shown

that he is capable of working and capable of similar future acquisition of

capital assets and income as is [Wife].

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(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.

[Wife] has been consistently employed outside the home. We are

not dealing with a stay-at-home homemaker who contributed to the

increased earning power of her spouse. [Husband] was employed outside

the home until 2011 when he began receiving disability. The testimony

clearly shows that once [Husband] no longer worked he did not take on a

role as a homemaker or the primary parental responsibilities for the day to

day needs of the parties’ child. To the contrary, [Wife] still was the

primary caregiver, often having to leave work due to the needs of the minor

child because [Husband] was unwilling or unable to be responsible for such

simple tasks as consistently picking the child up from school. Also,

[Husband’s] ho[a]rding behavior continued and increased contributing to

the worsening of the condition of the marital home.

Likewise, although [Husband] has not been employed since 2011 he

was not, during that time, taking care of home and child related duties such

that he can be said to have contributed to his wife’s increased earning

power. In fact the opposite is true. During this time the husband’s

hoarding behavior caused the condition of the home to decrease as seen by

the photos taken before or at the time of separation in exhibit 41 and the

wife had to leave work because the husband would not wake up in time to

pick the child up from school in the afternoon.

In addition there has been the allegation in this case that [Husband]

dissipated the marital assets in the amount of $25,000.00 by making

unaccounted withdrawals from the parties’ join[t] account beginning in

June of 2015, with a $5,000.00 withdrawal after the divorce was filed and

ending with a $4,000.00 withdraw[al] on 8/28/2018 as shown in exhibit

#37. [Husband] would time his large withdrawals with the deposit of his

wife’s payroll checks and intentionally cause the direct withdrawal for the

home mortgage to be underfunded. [Husband] could not account for these

funds except to say he believed he paid $5,000.00 in attorney fees to Mr.

Clement [Husband’s initial counsel]; he was unable to specifically account

for these withdrawals. Therefore this Court finds that the husband has

dissipated marital assets in the amount of $20,000.00[.]

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In addition [Wife] alleges [Husband] dissipated the marital estate by

his excessive spending which was a problem in their marriage. [Husband]

spent marital funds to amass a book collection of approximately 14,000

books, a huge collection of Lego toys, a rock collection, other toys, comic

books, art supplies. These expenditures were made over the continued

protest of the wife due to the stress on their finances, and were not for the

benefit of the marriage or the child. These were not toys for the parties’

minor child but for [Husband]. This spending also added to the hoarding of

things by [Husband] in the marital residence. This Court concludes that

these expenditures were wasteful; expenditures that substantially reduced

the marital assets of the parties as [Husband] was spending $5,000.00 to

$6,000.00 monthly on these items.

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

The parties have no separate assets other than some small items

which were gifts to the wife.

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

Neither party had an estate of any value at the time of the marriage.

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

division of property is to become effective.

At this time [Wife] is still gainfully employed at ORNL and is

making $11,204.90 monthly.[5] [Husband] continues to draw long term

disability through his former employer in the amount of $2,449.60 and

Social Security Disability in the gross amount of $1,786.00, thus bringing

his current monthly income to $4,235.60 and a yearly income to

$50,827.20.

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

reasonably foreseeable sale of the asset, and reasonably

foreseeable expense associated with the asset.

In [this] case, the major asset of these parties is the marital home.

Because of its current condition the[r]e are numerous foreseeable expenses

associated with the asset. The home currently needs repair due to two

instances of water damage to the home. The Court is currently holding two

checks made payable to the [parties] from their homeowner’s insurance to

assist in these repairs.

5

Elsewhere in the final decree, the trial court found Wife’s monthly gross income to be slightly higher at

$11,504.74, which was the amount indicated on Wife’s April 26, 2019 pay stub presented as an exhibit at

trial.

- 20 -

In addition, the home must be cleaned out either before a sale or

before it could ever be considered safe for the minor child to return there.

The hoarding has reached the level that significant expenses will be

incurred in order to clean out this house.

(10) The parties do not have a closely held business or similar asset so

the factor is not applicable in this case.

(11) The amount of Social Security benefits available to each spouse.

The husband is currently drawing Social Security Disability in the

amount of $1786 per month. In addition, the parties’ minor child receives

$893 from Social Security due to her father’s disability.

No other information was brought before this Court concerning what

other Social Security benefits are or will be available to the parties.[6]

Upon consideration of the statutory factors, the trial court set forth a chart of

marital assets and debts with disposition of each. Specifically at issue on appeal, the

court taxed Husband with a total of $65,000.00 in dissipation of the marital estate and

directed that each party would retain his or her own ORNL pension fund despite a

disparity in the amounts to be paid upon retirement. Dissipation was assessed against

Husband in two amounts: $20,000.00 for his withdrawals from the parties’ joint

checking account and $45,000.00 in attorney’s fees the court found to be the result of

unnecessary litigation caused by Husband’s actions. The court ultimately distributed a

portion of the estate valued at $464,000.84, inclusive of the $65,000.00 in dissipation, to

Husband and a portion valued at $468,300.88 to Wife, yielding a percentage ratio of 49.8

percent to Husband and 50.2 percent to Wife. On appeal, each party has respectively

submitted a table pursuant to Tennessee Court of Appeals Rule 7, “list[ing] all property

and debts considered by the trial court, including: (1) all separate property, (2) all marital

property, and (3) all separate and marital debts.” See Tenn. Ct. App. R. 7(a). Neither

party has disputed any specific valuation found by the trial court.

A. Dissipation

Husband contends that the trial court erred in assessing him with $20,000.00 in

dissipation based on his withdrawals of funds from a joint checking account during the

6

The applicable version of Tennessee Code Annotated § 36-4-121(c) (2014) additionally provided as

factor (11): “Such other factors as are now necessary to consider the equities between the parties.” This

final factor was codified as factor (12) in the 2021 version of the statute. Tenn. Code Ann. § 36-4-121(c)

(2021).

- 21 -

pendency of the divorce and $45,000.00 in dissipation based on the court’s finding that

Husband’s actions caused the parties’ attorney’s fees to be greater by that amount.

“Dissipation of marital property occurs when one spouse uses marital property,

frivolously and without justification, for a purpose unrelated to the marriage and at a time

when the marriage is breaking down.” Altman v. Altman, 181 S.W.3d 676, 681-82 (Tenn.

Ct. App. 2005). As this Court has explained:

[T]he allegedly improper or wasteful expenditure or transaction must be

considered in the context of the marriage as a whole, and it must be

weighed along with all the other relevant factors in the case. The factors

that courts most frequently consider when determining whether a particular

expenditure or transaction amounts to dissipation include: (1) whether the

expenditure benefitted the marriage or was made for a purpose entirely

unrelated to the marriage; (2) whether the expenditure or transaction

occurred when the parties were experiencing marital difficulties or were

contemplating divorce; (3) whether the expenditure was excessive or de

minimis; and (4) whether the dissipating party intended to hide, deplete, or

divert a marital asset.

Id. at 682 (internal citations and footnote omitted). Once a pattern of spending has been

established as typical during the marriage, a trial court is not to consider it as dissipation.

See Altman, 181 S.W.3d at 682 n.5 (“It is unlikely that expenditures that were typical or

commonplace during the marriage will constitute dissipation, especially when the other

spouse acquiesced in them.”).

Particularly concerning the $20,000.00 in withdrawals, Husband argues that the

trial court improperly required him to carry the burden of proving that he had not

dissipated the funds rather than requiring Wife to prove that he had. We disagree.

Husband is correct that “[t]he burden of persuasion and the initial burden of production in

showing dissipation is on the party making the allegation, and that party retains

throughout the burden of persuading the court that funds have been dissipated.” See

Burden v. Burden, 250 S.W.3d 899, 919 (Tenn. Ct. App. 2007) (quoting Wiltse v. Wiltse,

No. W2002-03132-COA-R3-CV, 2004 WL 1908803, at *4 (Tenn. Ct. App. Aug. 24,

2004)) (internal citations omitted in Burden). However, “[o]nce the party alleging

dissipation has established a prima facie case of dissipation, the burden shifts to the other

spouse to show the court that the expenditures were not dissipation.” Trezevant v.

Trezevant, 568 S.W.3d 595, 618 (Tenn. Ct. App. 2018).

On appeal, Husband asserts that Wife presented “no documentation” of his

$20,000.00 in unexplained withdrawals from the parties’ joint bank account because the

trial court’s reference in its final decree to the proof of these withdrawals is to an exhibit

- 22 -

consisting of September 2018 email correspondence between the parties’ counsel. As

Wife points out, this email correspondence included a message from Wife’s initial

counsel to Husband’s former counsel with a table itemizing each unexplained withdrawal

and requesting information concerning the funds withdrawn.7 The table included

withdrawals made on dates spanning June 1, 2015, through September 14, 2017, and

totaling $21,100.00. In the body of the email authored by Wife’s initial counsel, she

included a $4,000.00 withdrawal purportedly made by Husband on August 28, 2018,

bringing the total of the allegedly unexplained withdrawals to $25,100.00.

Wife avers on appeal that the summary of withdrawals from the email

correspondence was presented as a stipulated exhibit during the first portion of the trial in

May 2019. The transcript of that proceeding sets forth the following exchange during

Wife’s testimony under direct examination by her trial counsel:

Trial Court: Is there documentation that shows the $25,000

withdraw, or is it already part of one of the

exhibits already made part of the record?

Wife’s Counsel: Here it is.

Trial Court: Do we have a transaction date?

Husband’s Counsel: We have a summary that was created by

[Wife’s initial counsel], Your Honor, and I

think it’s from the joint account, so I think there

would have to be some testimony about that.

Wife’s Counsel: That’s fine.

Trial Court: That will be fine. I think we have all the

exhibits in at this time regarding the Master

Asset and Debt List. So we can continue on

with [Wife’s] testimony.

7

Wife’s counsel was initially attorney Margaret B. Held. Throughout the trial, Wife was represented by

attorney William C. Cremins. Wife’s appellate counsel was substituted with the commencement of this

appeal. Husband’s counsel was initially attorney J. Michael Clement. Although Husband was

subsequently represented by attorney Benjamin T. Barnett and then attorney Martin W. Cash, Jr.,

Husband’s current counsel was substituted to represent him six months prior to the commencement of

trial.

- 23 -

Wife’s Counsel: Let’s talk about the missing 25,000. From

which account is it missing?

Wife: It’s missing from the joint account.

Wife’s Counsel: Did you create with [Wife’s initial counsel] a

summary of voluminous documents that would

indicate the dates and the sums that were taken

out of the joint account?

Wife: Correct.

Wife’s Counsel: Is this a fair and adequate representation of that

summary of voluminous documents?

Wife: I believe so.

Wife’s Counsel: Would you take a look at it, please?

Wife: (Witness complies.)

Wife’s Counsel: Now, recall for the court the date and the times

sums were missing and unexplained.

Wife: June lst, 2015, $5,000; September 21st, 2015, a

thousand; November 10th, 2015, a thousand;

November 23, 2015, a thousand; November 25,

2015, 600; November 28, 2015, 500; December

5th, 2015, 600; December 12, 2015, a hundred;

December 12, 2015, 900; December 19, 2016,

2,000; January 15, 2016, 600; January 21, 2016,

a thousand; February 10, 2016, a thousand;

February 12, 2016, 2000; March 19, 2016, 500;

April 3rd, 2016, 500; April 13, 2016, 600; May

lst, 2016, 600; May 11, 2016, 600; April 14,

2017, a thousand, and there’s one that wasn’t on

the list, but it’s in the letter. It’s August 28,

2018, 4,000.

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Wife’s Counsel: Your Honor, please, by agreement of counsel,

this compilation of voluminous documents will

be the next exhibit.

The trial court accepted the compilation as exhibit number 37 (“Exhibit 37”) with no

objection from Husband’s counsel.

Husband subsequently testified as follows regarding the withdrawals listed in

Exhibit 37:

Husband’s Counsel: I’m handing you this list, [Husband], and I

know you’ve seen this before. Is that correct?

Husband: Yes.

Husband’s Counsel: Okay. Where it says June 1st, 2015, $5,000, do

you know what that was for?

Husband: That was the payment to [Husband’s initial

counsel].

Husband’s Counsel: And then it also says on here there was a $4,000

withdrawal on August 28, 2018. Do you recall

withdrawing $4,000 on August 28, 2018?

Husband: That may have been moved to one of my other

accounts. I’d have to check. I don’t remember

offhand what that withdrawal was.

Husband’s Counsel: Some of these other withdrawals when we start

– like September 2015, November, there’s like

$1,000, $1,000. Do you recall withdrawing

these amounts?

Husband: I don’t recall withdrawing any of them

specifically, but some of them were – I went

through a phase of paying for pretty much

everything in cash, so that’s what some of them

are.

Husband’s Counsel: Okay.

- 25 -

Husband: The rounder figures of a thousand and so forth,

I’m thinking are probably more payments to

lawyers, but I’m not sure.

Husband’s Counsel: Okay. At this time were you – I know this is

around the time of the separation, and I think

you said you had opened up the Amazon credit

card, but do you recall when you opened up the

Amazon credit card?

Husband: Probably June 2015.

Husband’s Counsel: Did you ever make any withdrawals of cash to

pay for just everyday expenses?

Husband: Like I said, I paid for everything in cash at a

certain point, and that was probably starting in

September 2015.

Husband’s Counsel: When you all first separated – and let me make

it clear. This is from the joint account; is that

correct?

Husband: Yes.

Husband’s Counsel: When you all first separated, did you have a

separate bank account?

Husband: No.

Husband’s Counsel: Did you eventually open up the two accounts

that we have already marked as exhibits?

Husband: One quickly, as a placeholder, and it sat there

for a long time. And then one more recently,

and I’m not exactly sure when that one was

opened.

In the email correspondence within Exhibit 37, Wife’s former counsel stated that

Wife “puts money into the [joint] account to cover her proportional share of the parties’

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mortgage on the [marital residence], but otherwise does not use the account.” During

trial, Wife testified that per an agreement the parties had made shortly after the

separation, she deposited three-quarters of the funds needed to cover the mortgage

payment into the joint account each month with the expectation that Husband would

cover the remaining quarter of the payment through his disability income. Although

Husband testified that he knew of no such agreement, Wife acknowledged that Husband

had paid one-quarter of the mortgage payment until he stopped depositing funds to cover

his portion in January 2019. The court noted in its final decree that the mortgage

payment was paid through an automatic withdrawal from the joint checking account.

Wife also acknowledged that she had withdrawn $10,000.00 from the joint checking

account at one point to pay a balance owed to Mattel Toy Company. Wife stated that she

had “a cancelled check to prove it, too.”8 Husband at no time disputed that he had been

the party who made the withdrawals listed in Exhibit 37.

In support of his argument, Husband relies on Burden, 250 S.W.3d at 920, in

which this Court affirmed the trial court’s finding that the wife had failed to carry her

burden of proving a prima facie case of dissipation. We find Burden to be highly

factually distinguishable from the instant action. In Burden, the wife alleged that the

husband had dissipated a marital asset by decreasing funds in his individual bank

account, which the parties agreed was marital property, from approximately $46,000.00

when he retained his divorce attorney to approximately $7,000.00 at the time of trial. Id.

The Burden trial court found that although the husband had spent $25,000.00 of these

funds on attorney’s fees, any accounting for the remainder of the funds would be

speculative primarily because of the manner in which the husband had managed the

account for several years prior to the divorce, often withdrawing funds to pay expenses

for his “‘moonlighting’ job repairing and reselling used cars” while not depositing the

cash profits from his moonlighting job into the account. Id. The husband testified that he

spent the cash profits “‘here, there and yonder’ on food, clothes and other expenses.” Id.

The Burden trial court found that the husband’s manner of managing the profits

from his moonlighting job had been in place for several years prior to the divorce and that

“in light of Husband’s contrary testimony,” it could not reach the conclusion that the

funds were dissipated “by ‘surmise’ or ‘guess.’” Id. Importantly, this Court in affirming

the trial court’s determination in this regard deferred to the trial court’s credibility

findings. Id. We note also that the Burden trial court taxed the husband in its equitable

8

It is undisputed that at the time of the parties’ separation, Wife withdrew $24,000.00 from the parties’

joint account to deposit the funds in a “TNStars” college savings account for the Child. According to a

log kept by Wife and presented as an exhibit at trial, this $24,000.00 consisted of funds that had been

given as gifts to the Child but deposited into the joint account. Husband has not raised an issue on appeal

regarding the $24,000.00 in the TNStars account.

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distribution of the marital estate with the $25,000.00 he had spent in attorney’s fees from

the bank account in question. Id.

In contrast, we determine in this case that the evidence does not preponderate

against the trial court’s finding that Wife carried her burden of proving that the

$20,000.00 in withdrawals from the joint checking account during the pendency of the

divorce constituted dissipation of marital assets by Husband. By agreement of the

parties, Exhibit 37 was presented as a compilation of “voluminous documents,” in other

words, joint bank account statements, indicating $25,100.00 in withdrawals over several

months’ time following the parties’ separation. Husband was able to specifically account

solely for the $5,000.00 he had paid as a retainer to his initial counsel. As to the first

three Altman factors concerning dissipation of the remaining $20,000.00, (1) Husband

was unable to offer any explanation indicating that the funds were spent on matters

related to the marriage; (2) the funds were undisputedly withdrawn during a time when

the marriage had disintegrated; and (3) the entire sum was large enough to be reasonably

considered excessive. See Altman, 181 S.W.3d at 681-82.

Concerning the fourth factor of intent “to hide, deplete, or divert a marital asset,”

see id., the trial court found that Husband had “time[d] his large withdrawals with the

deposit of his wife’s payroll checks,” “intentionally caus[ing] the direct withdrawal for

the home mortgage to be underfunded.” Husband has not questioned this factual finding

on appeal. We note that according to Wife’s testimony, Husband’s actions of

withdrawing funds from the joint checking account contemporaneously with her deposit

of funds into the account, such that the direct payment to the mortgage company would

be underfunded, began to occur in January 2019, a later date than the dates of the account

withdrawals in question. However, considering that the joint account was in a depleted

state by January 2019 because of Husband’s earlier withdrawals, his actions in 2019 of

withdrawing the funds for his personal use that Wife had deposited to cover upcoming

mortgage payments does exhibit an intent to hide, deplete, or divert a marital asset.

We determine that Wife established a prima facie case of dissipation as to the

$20,000.00 in Husband’s withdrawals from the parties’ joint checking account,

effectively shifting the burden of proof to Husband to show that he did not dissipate those

funds. See Trezevant, 568 S.W.3d at 618. Husband in turn failed entirely to carry his

burden to show that the $20,000.00 in withdrawals did not constitute dissipation of

marital assets. The evidence does not preponderate against the trial court’s finding of

dissipation as to the $20,000.00 in bank withdrawals.

The trial court’s finding that Husband dissipated $45,000.00 in marital funds by

causing unnecessary expenditures of attorney’s fees poses the unique but not

unprecedented issue of whether conduct causing excessive attorney’s fees may constitute

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dissipation in a divorce case. In Beyer v. Beyer, 428 S.W.3d 59 (Tenn. Ct. App. 2013),

this Court affirmed the trial court’s finding of dissipation when the husband was found to

have paid $81,000.00 to his former attorney from marital funds in an attempt to develop a

civil suit against the wife for parental alienation. As this Court recently noted in Davis v.

Davis, No. W2019-02245-COA-R3-CV, 2021 WL 4775719, at *7 (Tenn. Ct. App. Oct.

13, 2021), the husband’s attempt in Beyer to develop a cause of action distinct from the

divorce was “a different situation from paying a divorce attorney for doing legal work on

the actual divorce case.” In Davis, this Court, finding Beyer distinguishable, affirmed the

trial court’s denial of the husband’s request that the wife be assessed with dissipation for

what the husband characterized as “unjustified” and “extreme” “litigation tactics.” Id.

However, in another issue involving dissipation in Beyer, this Court affirmed the

trial court’s finding that the husband’s “actions caused him to incur an unnecessary and

excessive amount of attorney’s fees that he paid with marital funds.” Beyer, 428 S.W.3d

at 83. The Beyer trial court had assessed the husband with $100,000.00 in dissipation for

an “‘[u]nreasonable amount of attorney’s fees paid by [the husband] for unsubstantiated

positions and changes of counsel,’” as well as “untruthful statements under oath”

prolonging the litigation. Id. This Court agreed with the trial court that the husband’s

actions in this regard constituted dissipation. Id. Nonetheless, because the Beyer trial

court had failed to indicate in its order how it arrived at the amount of $100,000.00, this

Court vacated the trial court’s “conclusion that [the husband] dissipated the marital estate

by spending $100,000 on unreasonable attorney’s fees” and remanded the issue for the

trial court “to further evaluate [the husband’s] expenditure of attorney’s fees to determine

the appropriate amount of dissipation.” Id. at *85 (emphasis added).

Although he does not invoke Beyer, Husband in this action does argue that the

trial court erred in assessing $45,000.00 against him in attorney’s fees as dissipation

because, he asserts, the trial court made “no findings” as to these fees. Upon careful

review of the trial court’s order, we disagree with Husband on this point. Although the

court in its final decree did not address this specific dissipation determination within its

explanation of the statutory factors, it did make the following findings regarding

dissipation through attorney’s fees at the conclusion of its rationale for the distribution of

the marital estate:

The attorney’s fees in this case were very high for both parties. The

court finds that many of the charged fees resulted from [Husband’s] non-

compliance with previous court orders, failure to complete discovery,

failure to turn over medical records, failure to disclose medical providers,

and unreasonably delaying the proceedings in this matter by repeatedly

seeking continuances of the trial in this matter.

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The court finds that [Husband] had threatened to bankrupt his wife

due to this divorce and in fact did cause the attorney fees in this matter [to]

be excessively high, to such an extent that they rise to the level of

dissipation of marital assets pursuant to T.C.A. § 36-4-121(c)(5).

The court finds that by [Husband’s] own actions, and his failure to

comply with discovery requests and court orders compelling discovery,

[Wife] had to file and argue five Motions to Compel or Motions for

Sanctions. In addition, [Husband’s] failure to comply with these court

orders regarding discovery and his failure to release medical records to

Rule 35 evaluating experts caused this trial to be delayed six times resulting

in additional expenses spent on trial preparation in addition to other

additional attorney’s fee[s]. One of these requested continuances was due

to [Husband’s] lying to this court regarding a scheduled surgery which has

been discussed earlier in this order. [Husband’s] failure to provide medical

records and failure to abide by the court’s order regarding Dr. Ko[l]ler as

the Rule 35 evaluating physician caused Dr. Ko[l]ler to refuse the court’s

appointment necessitating the appointment of a successor Rule 35

evaluator, Dr. Peter Young. The delay is this cause of action was

[exacerbated] by the continued turn over in [Husband’s] legal counsel.

The court also finds as previously discussed that even after being

ordered to do so, [Husband] continued to withhold his full medical history

from the numerous experts in this cause of action. As the court has

previously noted neither Dr. Ko[l]ler, Dr. Peter Young, Dr. Grello, nor Dr.

Alexander was ever provided a full and complete set of medical records by

[Husband]. [Husband] by and through his own actions waited long enough

before disclosing that he had been seen and tested by Dr. Smith that her

records were destroyed in the interim.[9]

[Husband’s] malingering, exaggerating and lying regarding his

mental issues caused additional cost and time of this court appointing Dr.

Alexander to evaluate him regarding his competency to continue with the

divorce trial.

9

In her June 2019 motion to strike Dr. Grello’s testimony, Wife averred that Husband had failed in

discovery to reveal the identity of Kathryn R. Smith, Ph.D., a psychiatrist who had administered testing to

Husband in November 2007 and treated him in December 2007 and January 2008. According to Wife’s

motion, Husband’s counsel had revealed Dr. Smith’s name during a telephonic motion hearing in 2018.

In answer to a discovery request, Dr. Smith submitted an affidavit, filed with the trial court in April 2019,

attaching calendar pages noting Husband’s appointments with her while explaining that any other record

of her treatment of Husband had been destroyed given the time period that had elapsed since treatment.

- 30 -

In addition, there arose the necessity to file motions and have

hearing[s] regarding [Husband’s] expert, Dr. Grello, refusing to turn over

all of her file regarding [Husband] and the testing that she administered on

[Husband].

All of these actions increased the costs and attorney fees of both

parties. Yet because the court holds [Husband] responsible for his actions

in not complying with the orders of this court, and the court finds that

[Husband’s] intentional acts unreasonably increased the attorney fee burden

on [Wife] which resulted in a dissipation of marital assets under T.C.A. §

36-4-121(c)(5).

The court has done a th[o]rough line item review of the attorney’s

fees charged by counsel, both current and past and has calculated the

amounts directly attributable to one of the numerous actions detailed above.

The court hereby finds that [Husband] caused a dissipation in marital assets

by his intentional action or through his own action by failing to abide by

court orders, discovery requests, and failing to provide full and complete

medical records in the amount of $45,000.00 which were paid out of

marital assets. This dissipation of marital assets is reflected in the above

chart of distribution of marital assets.

Contrary to Husband’s assertion, we conclude that the trial court made detailed

findings regarding the manner in which Husband’s actions unnecessarily increased

attorney’s fees paid out of marital assets. Noting the trial court’s determination that

Husband was not a credible witness and its finding that Wife was credible in stating that

Husband had threatened to bankrupt her through the divorce, we emphasize that the trial

court’s credibility determinations are afforded great weight on appeal. See Keyt, 244

S.W.3d at 327.10 Moreover, the record supports the trial court’s findings concerning

repeated delays in the proceedings caused by Husband’s failure to promptly comply with

discovery orders and to cooperate in providing medical records. We respect and credit

the trial court’s statement in its final order that in setting the amount of dissipation

through attorney’s fees at $45,000.00, the court conducted a thorough line-by-line review

of the attorneys’ invoices to “calculate[] the amounts directly attributable” to Husband’s

actions unnecessarily extending the litigation. These detailed invoices are in the record,

and the amount attributed by the trial court to dissipation is a mere fraction of the

attorney’s fees incurred in this matter.

10

In response to a question regarding what Husband said when she told him that she wanted a divorce,

Wife testified: “He told me that he would contest me having custody of [the Child] even if it would

bankrupt us.”

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Husband asserts that “the record is filled with filings by the Wife that made this

case very contested causing Husband to incur substantial attorney fees.” However,

Husband fails to address the trial court’s finding that many of Wife’s filings, including

her multiple motions seeking Husband’s compliance with discovery requests and orders,

were necessitated by Husband’s failure to comply with those requests and orders. In

support of his argument that Wife was responsible for much of the extended litigation in

this action, Husband asserts that the testimony of Dr. Young, Wife’s initial expert,

“caused this case to amplify” and “cast great doubt on the safety” of the Child in

Husband’s care. In its June 2016 agreed order, the trial court initially appointed Dr.

Koller as Wife’s expert witness to conduct Husband’s forensic psychological evaluation.

Approximately one year later, the court entered an agreed order releasing Dr. Koller and

appointing Dr. Young. In its final decree, the court specifically found that Husband’s

“failure to provide medical records and failure to abide by the court’s order regarding Dr.

Ko[l]ler as the Rule 35 evaluating physician caused Dr. Ko[l]ler to refuse the court’s

appointment necessitating the appointment of a successor Rule 35 evaluator, Dr. Peter

Young.”

It is undisputed that Dr. Young, under oath during his December 2017 deposition,

responded untruthfully when asked if he had ever incurred disciplinary complaints,

failing to acknowledge that his license had been suspended a few days before the

deposition due to two disciplinary complaints unrelated to this action. Upon Husband’s

motion to exclude Dr. Young’s report and testimony and Wife’s reply objecting to the

exclusion, the trial court found that Dr. Young had “perjured himself” with his response

regarding disciplinary complaints. However, the court denied Husband’s motion to

exclude, stating in its December 17, 2018 order that it would afford Dr. Young’s

testimony and report “the weight the Court deems indicated.” In emphasizing Dr.

Young’s failure to testify truthfully as to the disciplinary complaints, Husband implies

that Dr. Young’s concern regarding the safety of the Child in Husband’s care was

overblown and was somehow responsible for much of the extensive litigation.

We find Husband’s allegation in this regard to be irrelevant to the trial court’s

finding of dissipation through increased attorney’s fees, and the additional matters

addressed in the trial court’s December 17, 2018 order provide an illustrative example of

why. In addition to addressing the question of Dr. Young’s testimony and report, the trial

court in this order also, inter alia, denied a motion to continue proffered by Husband

upon noting multiple previous continuances and the court’s prior advice to Husband “to

retain counsel post haste” when his former counsel had withdrawn a few months before.

Also entertaining a motion for sanctions filed by Wife, the trial court ordered Husband to

“update and/or tender his financial records, and address the withdrawals from his banking

accounts”; sign proposed healthcare and financial records release orders; and within ten

- 32 -

days of the order’s entry, “update his discovery answers, and produce records of all of his

accounts as requested via interrogatories, and/or requests for production of documents.”

Finally, the court stated in the December 2017 order:

The Court has previously Ordered [Husband’s] financial and

healthcare records be produced to counsel for [Wife], yet compliance has

yet to occur, necessitating this motion hearing. Court costs and counsel

fees incident to compelling financial records and healthcare records

compliance shall be, and are, awarded [Wife] incident to efforts to obtain

these records[.]

As the trial court delineated, this is one example of many in the record in which

Husband’s failure to comply or delay in complying with discovery requests and orders

extended the litigation. The trial court also found that Husband’s credibility in requesting

multiple continuances was impugned when he ultimately acknowledged during the

second portion of the trial that he had previously requested a continuance “for a surgery

that was never actually scheduled or performed.”

Furthermore, within the specific circumstances of this case, we determine that the

trial court’s finding regarding dissipation through unnecessarily incurred attorney’s fees

satisfies the Altman dissipation factors. The trial court clearly identified the $45,000.00

in fees as excessive, and given the nature of the fees, they were incurred during the

breakdown of the parties’ marriage and were not in service of the marriage. See Altman,

181 S.W.3d at 681-82. Additionally, the trial court specifically credited Wife’s statement

that Husband had expressed his intent to bankrupt her through the divorce, satisfying the

fourth factor of intent to deplete a marital asset. See id. Moreover, in contrast to the trial

court in Beyer, see 428 S.W.3d at 83, the trial court here delineated Husband’s actions

that the court found caused unnecessary attorney’s fees and conducted a line-item review

of the fees charged to arrive at the amount assessed.

Finally, in regard to dissipation, within its analysis of factor five, see Tenn. Code

Ann. § 36-4-121(c)(5), the trial court found that Husband had been responsible for

$5,000.00 to $6,000.00 in monthly expenditures during the marriage that were “wasteful”

and were “made over the continued protest” of Wife. These expenditures included

Husband’s collections of books, “Lego toys, a rock collection, other toys, comic books,

art supplies.” Husband has not raised an issue regarding the trial court’s finding of

wasteful expenditures. Wife has mentioned the finding in a footnote of her brief,

asserting that these expenditures also constituted dissipation. We note that the trial court

did not assess Husband with dissipation related to these expenditures in the division of

marital property. Although Wife testified that she objected to Husband’s spending during

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the marriage, the parties’ respective testimonies also indicated that Wife tolerated it for

some time.

Inasmuch as spending that was typical during the marriage does not constitute

dissipation, we agree with the trial court’s decision not to include what it found to be

Husband’s “wasteful” expenditures as dissipation. See Altman, 181 S.W.3d at 682 n.5

(“It is unlikely that expenditures that were typical or commonplace during the marriage

will constitute dissipation, especially when the other spouse acquiesced in them.”).

However, we also determine the trial court’s consideration of Husband’s excessive

spending during the marriage within its analysis of statutory factors to be appropriate

because such spending did constitute a failure to preserve marital assets that may be

considered as a factor “necessary to consider the equities between the parties.” See Tenn.

Code Ann. § 36-4-121(c)(11) (2014); Pack v. Pack, No. M2018-00491-COA-R3-CV,

2019 WL 1934818, at *9 (Tenn. Ct. App. Apr. 30, 2019) (“While the 17 years of wasteful

expenditures would not constitute ‘dissipation of marital assets,’ as that term is defined in

the statute, it can be considered as a failure to preserve marital assets[.]” (citing Flannary

v. Flannary, 121 S.W.3d 647, 651 (Tenn. 2003)).

We conclude that the evidence does not preponderate against the trial court’s

determinations that the $20,000.00 in funds withdrawn by Husband from the parties’ joint

account and the $45,000.00 in attorney’s fees the court found to be caused by Husband’s

misconduct and delays constituted marital assets dissipated by Husband to be considered

in the equitable distribution of the marital estate. The trial court did not abuse its

discretion in assessing Husband with $65,000.00 total in dissipation.

B. Pension Accounts

In its distribution of the marital estate, the trial court directed that each party

would retain his or her individual ORNL pension plan. During trial, Wife presented, by

agreement of the parties, May 2019 letters from a representative of Pension Operations at

ORNL, stating that Wife and Husband were each “vested in the Pension Plan for

Employees at ORNL,” with an “estimated monthly defined benefit accrued as of

5/22/2019 and payable at age 65 as a Single Life Annuity.” Wife’s monthly benefit at

age sixty-five was estimated at $1,839.89, while Husband’s monthly benefit at age sixty-

five, provided that he continue “to meet the requirements under the LTD [long-term

disability] plan,” was estimated at $1,130.62. At the time of trial, both parties were forty-

nine years of age. In each letter, the ORNL representative stated: “We do not calculate

the present value of the vested benefit because the only benefit option provided by the

current plan is a monthly payment.”

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Husband contends that the trial court erred “by not making an equitable division of

the parties’ pension accounts,” asserting that the court should have granted $354.61 per

month of Wife’s pension account, approximately half of the difference between the two

monthly benefits, to Husband to render an equitable division. Wife contends that

Husband has waived this argument because he did not cite to any authority specifically in

support of his proposition that the pension accounts should be equally divided in order for

the distribution of the marital estate to be equitable. See Newcomb v. Kohler Co., 222

S.W.3d 368, 401 (Tenn. Ct. App. 2006) (“The failure of a party to cite to any authority or

to construct an argument regarding his position on appeal constitutes waiver of that

issue.”). Noting that Husband has cited generally in his argument section to principles of

equitable distribution and exercising our discretion, we do not find Husband’s argument

to be waived. However, we agree with Wife that Husband has failed to cite any authority

supporting his contention that the pensions accounts must be divided equally, and we

know of none so long as the overall distribution of the marital estate is determined to be

equitable. Given the nearly equal distribution of marital property in the trial court’s final

order, we discern no abuse of discretion in the court’s decision to have each party retain

his or her own ORNL pension account.

C. Equitable Distribution

As recognized above, “[t]his Court gives great weight to the decisions of the trial

court in dividing marital assets and ‘we are disinclined to disturb the trial court’s decision

unless the distribution lacks proper evidentiary support or results in some error of law or

misapplication of statutory requirements and procedures.’” See Keyt, 244 S.W.3d at 327

(quoting Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). This Court

has also previously elucidated:

The approach to dividing a marital estate should not be mechanical,

but rather should entail carefully weighing the relevant factors in Tenn.

Code Ann. § 36-4-121(c) in light of the evidence that the parties have

presented. Trial courts have broad discretion in fashioning an equitable

division of marital property, and appellate courts must accord great weight

to a trial court’s division of marital property. Accordingly, it is not our role

to tweak the manner in which a trial court has divided the marital property.

Rather, our role is to determine whether the trial court applied the correct

legal standards, whether the manner in which the trial court weighed the

factors in Tenn. Code Ann. § 36-4-121(c) is consistent with logic and

reason, and whether the trial court’s division of the marital property is

equitable.

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Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007) (internal citations omitted);

see also Payne v. Payne, No. E2006-02467-COA-R3-CV, 2007 WL 2668588 at *4

(Tenn. Ct. App. Sep. 12, 2007) (“The division of the estate is not rendered inequitable

simply because it is not mathematically equal, or because each party did not receive a

share of every item of marital property.” (quoting Morton v. Morton, 182 S.W.3d 821,

833-34 (Tenn. Ct. App. 2005)) (other internal citations omitted).

In the case at bar, although the trial court’s distribution of marital property is not

exactly mathematically equal with 50.2% of the estate, valued at $468,300.88, awarded to

Wife and 49.8%, valued at $464,000.84, awarded to Husband, we determine that the

court’s distribution is equitable based on consideration of the statutory factors. As

Husband notes, a portion of the property granted to Husband included the trial court’s

finding of $65,000.00 in marital assets he had dissipated, meaning that without these

dissipated funds assessed to Husband, his share of the remaining estate would be

$399,000.84, or 46% as opposed to Wife’s 54%. Wife argues that even without the

dissipated funds assessed to Husband’s total, the distribution would still be equitable and

should not be “tweak[ed]” by this Court. See Owens, 241 S.W.3d at 490 (“[I]t is not our

role to tweak the manner in which a trial court has divided the marital property.”); see

also Telfer v. Telfer, 558 S.W.3d 643, 657 (Tenn. Ct. App. 2018) (“We are very much

disinclined to tinker with a lower court’s decisions regarding the division of a marital

estate.”). We agree, and moreover, having affirmed the trial court’s findings of

dissipation, discern no reason to disturb the trial court’s distribution of the marital estate.

The trial court’s factual findings were supported by a preponderance of the

evidence, and the manner in which the trial court weighed the factors contained in

Tennessee Code Annotated § 36-4-121(c) was consistent with logic and reason. The

result to these parties was equitable. As such, we conclude that the trial court’s

distribution of marital property did not lack proper evidentiary support and did not result

in an “‘error of law or misapplication of statutory requirements and procedures.’” See

Keyt, 244 S.W.3d at 327 (quoting Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct.

App. 1996)). We therefore affirm the trial court’s equitable distribution of marital

property.

VI. Dr. Alexander’s Expert Witness Testimony

In his statement of issues, Husband raises the question of “[w]hether the trial court

erred in appointing and/or allowing certain expert testimony.” In the argument section of

his brief supporting this issue, Husband clarifies that the expert witness testimony at issue

is that provided by Dr. Alexander. Husband contends that the trial court erred by

“appointing an expert mid-trial to determine if Husband was competent to testify and

then allowing that expert to become Wife’s expert and opine on issues beyond Husband’s

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competency to testify.” Wife contends that Husband waived this issue by failing to

properly preserve it before the trial court. As a threshold matter, we determine that

Husband waived a portion of the issue in that he did not object to the initial appointment

of Dr. Alexander when the trial court sua sponte continued the trial in order to appoint an

expert to complete a psychological evaluation of Husband. However, we further

determine that Husband timely raised an issue concerning the scope of Dr. Alexander’s

testimony and that he has properly preserved that portion of his issue on appeal.

In its August 20, 2019 order, the trial court, upon its own motion and following a

hearing, appointed Dr. Alexander pursuant to Tennessee Rule of Civil Procedure 35.01,

which provides:

When the mental or physical condition (including the blood group) of a

party, or of a person in the custody or under the legal control of a party, is

in controversy, the court in which the action is pending may order the party

to submit to a physical or mental examination by a suitably licensed or

certified examiner or to produce for examination the person in his custody

or legal control. The order may be made only on motion for good cause

shown and upon notice to the person to be examined and to all parties and

shall specify the time, place, manner, conditions, and scope of the

examination and the person or persons by whom it is to be made.

Regarding expert witness testimony in general, Tennessee Rule of Evidence 702

provides:

If scientific, technical, or other specialized knowledge will substantially

assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise.

Specifically concerning the appointment of expert witnesses in bench trials, Tennessee

Rule of Evidence 706 sets forth the following guidance:11

(a) Appointment - . . . . As to bench-tried issues, the court may on its

own motion or on the motion of any party enter an order to show

cause why expert witnesses should not be appointed and may request

the parties to submit nominations. The court ordinarily should

appoint expert witnesses agreed upon by the parties, but in

appropriate cases, for reasons stated on the record, the court may

11

In contrast, Tennessee Rule of Evidence 706(a) prohibits a trial court from “appoint[ing] expert

witnesses of its own selection on issues to be tried by a jury except as provided otherwise by law.”

- 37 -

appoint expert witnesses of its own selection. An expert witness

shall not be appointed by the court unless the witness consents to act.

A witness so appointed shall be informed of the witness’s duties by

the court in writing, a copy of which shall be filed with the clerk, or

at a conference in which the parties shall have opportunity to

participate. A witness so appointed shall advise the parties of the

witness’s findings, the witness’s deposition may be taken by any

party, and the witness may be called to testify by the court or any

party. The witness shall be subject to cross-examination by each

party, including a party calling the witness.

(b) Compensation - Expert witnesses so appointed are entitled to

reasonable compensation in whatever sum the court may allow. The

compensation thus fixed is payable from funds which may be

provided by law in criminal cases and civil actions and

condemnation proceedings. In other civil actions and proceedings

the compensation shall be paid by the parties in such proportion and

at such time as the court directs and thereafter charged in like

manner as other costs.

***

(d) Parties’ Experts of Own Selection - Nothing in this rule limits the

parties in calling expert witnesses of their own selection.

In its August 2019 order, the trial court described the circumstances leading to Dr.

Alexander’s appointment as follows:

This cause came on to be heard July 22, 2019, for the fourth day of

the trial of this action which was to resume with cross-examination of

[Husband] during the trial of this matter that commenced May 22, 2019.

After having reviewed Psychiatrist Fisher’s deposition testimony, Dr.

Young’s deposition, and Dr. Grello’s deposition, during the weekend

before the commencement of that cross-examination, the Court expressed

uncertainty about [Husband’s] competency. The Court sought the opinions

of the parties’ counsel and the guardian ad litem about continuing the trial.

[Wife] opposed the continuance, preferring to obtain closure and

avoid additional expenses. The guardian ad litem and [Husband] deferred

to the Court’s desire to continue the case, to obtain an expert opinion as to

[Husband’s] competency to participate in this litigation or malingering.

- 38 -

Noting that the previously appointed Rule 35 expert, Dr. Kronk, had “retire[d] from

forensic work” and was not available, the court appointed Dr. Alexander “to interview,

test, evaluate, report, and opine, and to otherwise take such steps as believed indicated to

evaluate [Husband’s] competence to participate in this litigation with or without a

guardian ad litem or conservator.”

In his motion to strike Dr. Alexander’s testimony, Husband averred that the

August 2019 appointment order was “drafted by [Wife’s] counsel [and] was entered over

the objection and proposed order of [Husband’s] counsel.” However, the record contains

no contemporaneous filing submitted by Husband with specific objections to the

appointment order and no filing requesting that the court amend the order. Even in

Husband’s motion to strike, filed on November 14, 2019, the day after Dr. Alexander

testified at trial, it is unclear what Husband’s objection to Dr. Alexander’s initial

appointment would have been. We therefore determine that Husband has waived any

issue concerning the appointment of Dr. Alexander. See Tenn. R. App. P. 36(a), cmt. a.

(“[A] party is not entitled to relief if the party invited error, waived an error, or failed to

take whatever steps were reasonably available to cure an error.”).12

As to Dr. Alexander’s testimony during trial, Husband primarily asserts that the

trial court abused its discretion by allowing Dr. Alexander to act as both the court’s and

Wife’s expert witness and by allowing Dr. Alexander to testify beyond the scope of his

written report. Wife argues that Husband also waived this portion of the issue by failing

to timely object to Dr. Alexander’s testimony. Wife further asserts that Husband “invited

the error—essentially evaluating it to determine its effect before eventually deciding to

move to strike it from the record.”

Concerning evidentiary objections, this Court has explained in pertinent part:

Objections to the introduction of evidence must be timely and

specific. See Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct.

App. 1999). An evidentiary objection will be considered timely either if it

is made in a motion in limine or if it is made at the time the objectionable

evidence is about to be introduced. See Wright v. United Servs. Auto.

Ass’n, 789 S.W.2d 911, 914 (Tenn. Ct. App. 1990).

***

12

In his motion to strike the testimonies of Dr. Alexander and Dr. Hankins, Husband also alleged,

pursuant to Tennessee Rule of Evidence 702, that neither expert had been properly vetted as a qualified

expert. The trial court in its order denying the motion to strike found this argument unavailing. Husband

has not raised an issue concerning either expert’s qualifications on appeal.

- 39 -

Failure to object [to] evidence in a timely and specific fashion precludes

taking issue on appeal with the admission of the evidence. See Ehrlich v.

Weber, 114 Tenn. 711, 717-18, 88 S.W. 188, 189 (1905); Pyle v. Morrison,

716 S.W.2d 930, 936 (Tenn. Ct. App. 1986); Tenn. R. Evid. 103(a)(1).

Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000).

In its August 2019 appointment order, the trial court directed the following

regarding communication between Dr. Alexander and the parties:

The Court, notwithstanding Roach v. Dixie Gas, 371 S.W.3d 127,

146-47 (Tenn. App. [Ct.] 2011), directs that the parties’ counsel and

guardian ad litem may not have ex parte communications with the Court’s

Rule 35 expert witness until publication of the expert’s report, other than to

share this Order with that expert, arrange scheduling/appointments,

payments, a deposition or court appearance, and tender to that expert

documents and things addressed herein.[13] The Court’s expert shall be

available for an interview, depositions for proof, or discovery, if requested

by either party and the guardian ad litem, after publication of the expert’s

report, at the expense of the requesting party. Prior to publishing a report,

the Court’s expert may contact the guardian ad litem, or counsel for the

parties, with questions, to arrange appointments and/or payments of the

expert’s costs;

Costs of the Rule 35 examination shall be the equal responsibility of

the parties, who shall pay their respective halves upon being billed by the

Court’s expert. The Court shall entertain a Motion to reconsider the costs

of the Rule 35 mental health expert upon request of any party after

publication of the Court’s expert’s report[.]

(Paragraph numbering omitted.)

Dr. Alexander submitted his report on November 1, 2019. In answer to the trial

court’s questions concerning competency, Dr. Alexander concluded in the report: “It is

13

In Roach v. Dixie Gas Co., 371 S.W.3d 127, 147 (Tenn. Ct. App. 2011), this Court, having determined

that the requirements had been met for granting a motion filed by the defendant to have the plaintiffs

examined by a physician, concluded that “once the requirements of Rule 35 have been met, a trial court

has the discretion to compel a plaintiff to submit to a medical examination by a medical expert chosen by

the defendant, and that the defendant and/or his counsel may have ex parte communication with that

expert in preparation for the medical examination and for trial.”

- 40 -

my opinion, within a reasonable degree of medical certainty that [Husband] has the

capacity to adequately, sufficiently and appropriately testify during his divorce and

custody court hearing, and does not need a conservator or guardian ad litem to assist him

in testimony preparation or testifying.” In relevant part, Dr. Alexander further concluded

in his report:

[Husband] has a history of over endorsing psychiatric symptoms on

psychological testing, which may be consistent with a tendency to

exaggerate, which could be for attention or as part of his tendency to over

self-evaluate and over think questions. There is no doubt he has a serious

mental illness, Schizoaffective Disorder or Schizophrenia, which has

produced a plethora of serious symptoms in him, regardless. Either of these

diagnoses could cause him to over-interpret or misunderstand the intent of

the questions on this test. There doesn’t appear to be a logical reason why

he would want to look worse than he is, since he definitely wants to testify

and be heard, and I doubt he would want to sabotage his chances of doing

so by exaggerating to look more cognitively impaired.

On November 4, 2019, Wife’s counsel sent an email message addressed to

Husband’s counsel, the GAL, and Wife. In this message, which is in the appellate record

as an attachment to the trial court’s order denying Husband’s motion to strike, Wife’s

counsel stated in relevant part:

I’ve asked Dr. Alexander to testify in person about the Court’s

questions and about follow up questions I had about [Husband’s] mental

abilities. I want Dr. Alexander elaborating why [Husband] is competent,

and needs neither a GAL nor conservator. Rather than just ask questions of

Dr. Alexander at trial, I’ve told Dr. Alexander what I’d like to introduce at

trial, so he can prepare more than to just answer the court’s three questions.

Because the three questions asked by the court required Dr.

Alexander consider certain documents and things required shared with him,

but my questions require Dr. Alexander to review them with another

perspective, and review more documents, I’m asking more work of Dr.

Alexander than the court asked. For example, Dr. Alexander told me he’d

like [Husband’s] testimony on direct examination. I successfully argued in

chambers July 22, 2019, (when the court decided to appoint its own expert)

that [Husband’s] testimony ought not be given to the court’s expert,

because I’d not been able to cross examine, yet. Because Dr. Alexander

said he’d like it, [Wife] is emailing it to Dr. Alexander today.

- 41 -

I want to develop Dr. Alexander’s conclusions, and bases for the

conclusions. I also want to have Dr. Alexander help the court

understand/distinguish his testing and Dr. Grello’s, and comment upon

records the chancellor did not require shared with Dr. Alexander before he

published his report.

I want Dr. Alexander addressing [Husband’s] malingering scores,

self reported symptoms, healthcare providers’ records, and the effects upon

a determination of whether [Husband] can mentally function well enough to

work.

Dr. Alexander’s report is desired introduced via Dr. Alexander’s

testimony in court, as is his testimony about [Husband’s] malingering and

alleged mental issues claimed to be impairing [Husband’s] ability to work.

Dr. Alexander will testify about the records [Husband’s counsel] gave to

him; about the conclusions and bases documents of his report; about the

Grello deposition, especially my cross examination; and address, from a

psychiatric perspective, [Husband’s] employability and the Hankins report.

Dr. Alexander’s testimony will address and expound upon his report,

and also explain his opinions about [Husband’s] malingering to get money.

I’ve talked to and cleared with Attorney Russ Willis, of the

Tennessee Board of Professional Responsibility, [Wife] hiring the court’s

expert to answer more than the court’s three questions. Mr. Willis may be

reached at . . . . The Board’s opinion is that there’s nothing unethical about

my hiring Dr. Alexander to testify beyond the court’s three questions. With

so much unethical conduct alleged incident to this case, I wanted to bring

this opinion to the forefront.

[Wife] is hiring and will pay for what I’ve asked Dr. Alexander to

testify about exceeding the court’s mandate regarding competence, a GAL

and/or conservator. She’ll visit him November 7 to answer Dr. Alexander’s

questions regarding what [Husband] told Dr. Alexander. That will be

sought reimbursed as a litigation expense.

As all know, I’ve asked Dr. Hankins to share his report and bases

documents with Dr. Alexander. I expect that to happen before long today,

if not done already. If any want other records or things considered by Dr.

Alexander, I invite records or things to be submitted to him, with copies to

counsel of record.

- 42 -

I’m told each party still owes $1,500 for Dr. Alexander’s work

preparing to answer the court’s three questions, and doing so in his report.

As stated, [Wife] will contract to pay Dr. Alexander for the follow up work

he’ll testify about. The court will be asked to address expenses, costs, and

fees November 14, 2019.

I plan to cross examine [Husband] all day long November 12, 2019,

or for as long as allowed. I plan to introduce Dr. Alexander’s testimony at

9 a.m. November 13, 2019, and Dr. Hankins’s testimony that day at 1 p.m.

I plan to make closing arguments November 14, 2019, and ask for

expenses, costs, and fees then.

Dr. Alexander testified at trial that he is a licensed psychiatrist, that he had

previously served as the medical director at Lakeshore Mental Health Institute for twelve

years, and that he now operates a forensic and consultative practice based at Fort Sanders

Regional Medical Center. Dr. Alexander’s trial testimony began with examination by

Wife’s counsel, initially eliciting information regarding Dr. Alexander’s educational

background and professional qualifications as a forensic psychiatrist. The following

exchange then ensued:

Wife’s Counsel: Has your background, your education and your

experience come into play forming your

conclusions that [Husband] has no

schizophrenia and no schizoaffective disorder

and he’s competent?

Dr. Alexander: Yes. And competency, I just want to be clear,

that it depends on what the question is and –

Wife’s Counsel: Sure. There are degrees of competency, aren’t

there? And –

Dr. Alexander: Well –

Wife’s Counsel: – there are competencies to be –

Husband’s Counsel: Your Honor, I object to leading at this point.

Wife’s Counsel: I’m supposed to lead. He’s not my witness.

- 43 -

Trial Court: Okay. Actually, he’s the Court’s witness,

correct? This is the doctor that –

Wife’s Counsel: The Court appointed.

Trial Court: —has evaluated him for competence purposes?

Okay. I’m going to allow you to lead the

witness, especially through this.

Dr. Alexander testified that prior to issuing his report, he initially met with

Husband on October 25, 2019, when he interviewed Husband and administered two tests:

the SIMS (Structured Inventory of Malingering Symptomology) and the CNSVS (Central

Nervous System Vital Signs). After submitting his November 1, 2019 report, Dr.

Alexander requested a second interview with Husband, which was conducted on

November 11, 2019, two days prior to Dr. Alexander’s testifying at trial. As part of the

second session with Husband, Dr. Alexander again administered the CNSVS. Dr.

Alexander then opined during trial that Husband was malingering, was exaggerating his

symptoms, and was capable of maintaining employment in a position similar to the one

he had held at ORNL.

When Wife’s counsel began to question Dr. Alexander regarding Husband’s

employability, Husband’s counsel objected, and the following exchange occurred:

Husband’s Counsel: Your Honor, I’m going to object at this point

because his [Dr. Alexander’s] role in this is to

testify as to competency, and that was the only

issue.

Wife’s Counsel: If [Husband is] competent to go back to work at

the lab, it’s relevant testimony.

Trial Court: I’m going to allow it very briefly because that

wasn’t the purpose why he was appointed by

the Court. But I’m going to allow him to make

that statement. We’re not going to go very deep

into that because that was not the purpose of his

appointment.

Wife’s Counsel: Very briefly, Dr. Alexander. Do you opine that

[Husband] is able to go to work at the lab?

- 44 -

Dr. Alexander: Yes.

The GAL cross-examined Dr. Alexander before Husband’s counsel did. When the

GAL asked whether it was correct that he had changed his position since writing his

report, Dr. Alexander responded affirmatively. In response to the GAL’s question

regarding why his opinion had changed, Dr. Alexander stated:

As I continued to read records and ponder things. For example, the

testing that both the psychologists did, the results indicated -- for example,

Dr. Grello – that [Husband] had schizoaffective disorder. But that came

about at the same time and using the same scales that were way over

reported. So not only did he report in the ninety-eighth or ninety-ninth

percentile of schizophrenic like symptoms, he was way up there several

standard deviations above just the line that would make these symptoms

significant, which would be sixty-five, such that the profiles might have

been invalidated. Meaning that they couldn’t trust many things about their

results, but one of those would be the diagnosis. And when I first did my

report, I didn’t analyze these – the testing, the depositions. I don’t think I

had read the depositions of Dr. Young and Dr. Grello.

Subsequently, at the beginning of Husband’s counsel’s cross-examination of Dr.

Alexander, counsel posed questions regarding the telephone conversation that she had

engaged in with Dr. Alexander on November 8, 2019, and Dr. Alexander confirmed that

his opinion expressed at that time had aligned with his report. Husband’s counsel then

moved that she “be allowed to take [Dr. Alexander’s] cross examination on a later date,”

stating that Dr. Alexander was “completely contradicting” the conversation they had

shared five days before and that she did not “understand why.” Following argument from

both parties’ counsel, the trial court denied the motion, stating:

I’m going to order that the cross proceed at this time. He’s clearly stated

why he’s changed his opinion since then, upon more thorough review of

records provided. And at this point, I’m just not going to order another

delay and we’re going to proceed on.

The next day, Husband filed the motion to strike Dr. Alexander’s and Dr. Hankins’s

testimonies.

As to Dr. Hankins, the vocational rehabilitation expert, Husband states in the

argument section of his brief devoted to alimony that Dr. Hankins “changed his opinion

when he spoke to Dr. Alexander one (1) day before trial” and “piggy backed off” Dr.

Alexander. Husband does not raise an issue regarding Dr. Hankins’s expert witness

- 45 -

testimony and does not develop an argument concerning the trial court’s denial of his

motion to strike Dr. Hankins’s testimony. We therefore deem any issue as to Dr.

Hankins’s testimony to be waived. See Hodge, 382 S.W.3d at 334 (“Appellate review is

generally limited to the issues that have been presented for review.” (citing Tenn. R. App.

P. 13(b))).

In asserting that Husband waived this issue as to Dr. Alexander’s testimony, Wife

states: “Husband did not take any action until after Dr. Alexander testified, when he

moved to strike his testimony.” We disagree. During Wife’s counsel’s questioning of

Dr. Alexander, Husband’s counsel first objected to leading and then to the scope of the

questions, specifically to questions beyond the scope of Husband’s competency to testify.

When Husband’s counsel subsequently requested that her cross-examination of Husband

be continued to a later date, it is true that she did not specifically object to what she later

termed a conflict of interest on Dr. Alexander’s part or to the bases of Dr. Alexander’s

change in opinion. Arguably, if Husband’s counsel had responded to the November 4,

2019 email message and checked with Dr. Alexander after her November 8 telephone call

with him, Dr. Alexander’s reconsidered opinion would not have been such a surprise.

However, upon careful review of the transcript, we find it reasonable that

Husband’s counsel would have thought that any objection along the lines of the

arguments subsequently raised in the motion to strike would have been overruled as

repeating the earlier objection to the scope of the testimony. We note also that the trial

court in denying the motion to strike did not find that Husband’s arguments in this vein

had been waived through lack of a timely objection. Moreover, Husband’s counsel filed

the motion to strike on the morning after Dr. Alexander’s testimony and while the trial

was still in progress. We cannot conclude that Husband failed to act to correct a

perceived error in the trial court’s admission of Dr. Alexander’s testimony. See Tenn. R.

App. P. 36(a). We therefore determine that although Husband has waived any issue

concerning the appointment of Dr. Alexander, he has not waived the portion of his issue

concerning Dr. Alexander’s testimony.

Turning to the merits of this issue, Husband primarily argues that the trial court

should have granted his motion to strike Dr. Alexander’s testimony based on a conflict of

interest and lack of testimony as to the documents utilized to form Dr. Alexander’s

opinion. In its December 2019 order denying Husband’s motion to strike Dr.

Alexander’s testimony, the trial court made the following findings of fact in relevant part:

[Husband’s] Motion [to strike] asserted Dr. Alexander’s testimony

exceeded the Court’s appointment. It alleged Psychiatrist Alexander did so

by testifying why [Husband] is competent, does not need a guardian ad

litem nor a conservator, and elaborating during his testimony upon his

- 46 -

psychiatric opinions that [Husband] is not schizophrenic and does not have

schizoaffective disorder.

[Husband’s] Motion to Strike . . . asserted that Dr. Alexander had a

conflict, after accepting the appointment to be the Court’s expert witness to

answer those three questions, then agreeing to work for [Wife] by

elaborating upon answers to those three questions to testify why

competence is concluded, why no guardian ad litem, nor conservator, is

required, and follow up questions regarding malingering, diagnoses, and

employability. As argued by counsel for [Wife], the psychiatrist would not

do more work without assurance of payment, so [Wife] agreed to pay for

this work but would, as the November 4, 2019, email explains, ask the

Court to address this payment as a reimbursable litigation expense.

Counsel for [Husband] explained she did not read that November 4, 2019,

email before the trial resumed November 12, 2019.

Counsel for [Husband] objected during trial, asserting that the

psychiatrist’s testimony exceeded the three questions asked via the Order

that [was] entered August 20, 2019. The objection was overruled, because

the Court wanted to hear the testimony.

In the November 4, 2019, email, Dr. Alexander’s conclusions and

bases for those conclusions, were indicated desired shared with the Court as

subjects of further psychiatric inquiry. Dr. Alexander was sought to

contrast his testing with Dr. Grello’s, as indicated in the November 4, 2019,

email, which advised, “I want Dr. Alexander addressing [Husband’s]

malingering scores, self reported symptoms, healthcare providers’ records,

and the effects upon a determination of whether [Husband] can mentally

function well enough to work.” The psychiatrist was, as the email recites,

going to be asked at trial to address his report and expound upon it. Dr.

Alexander’s testimony addressed these matters and others as defined in that

email, including Dr. Grello’s testimony, the Hankins report, and

[Husband’s] employability. The November 4, 2019, email invited both the

guardian ad litem and counsel for [Husband] to share with Dr. Alexander

whatever was desired considered by him.

Finally, [Husband] complained that Dr. Alexander changed his

opinions from when Dr. Alexander previously expressed them, all of which

were prejudicing cross-examination of Dr. Alexander.

***

- 47 -

The Motion to Strike was . . . opposed regarding Dr. Alexander’s

testimony. The evaluation published November 1, 2019, by Dr. Alexander,

concluded by indicating that it was subject to change upon receipt of

information inspiring changes. The November 4, 2019, email from

[Wife’s] counsel to the guardian ad litem and counsel for [Husband], which

both acknowledged receiving, is attached and incorporated as if set forth

verbatim herein. It indicates [Wife’s] counsel was calling Dr. Alexander to

testify about this Court’s questions and follow up questions about

[Husband’s] mental abilities, and elaborating why competency is found.

That email recites Dr. Alexander was advised what was desired introduced

at trial so the psychiatrist could prepare to testify about more than merely

answering affirmatively or negatively each question from the Court.

The Order from the July 22, 2019, trial date which appointed Dr.

Alexander was the subject of different proposed Orders before it [was]

entered August 20, 2019. It appointed Dr. Alexander, required [Husband]

to present to Dr. Alexander for evaluation, and prohibited the parties and

guardian ad litem from ex parte communications with the psychiatrist, until

after he published his report. Delay resulted from [Husband] not presenting

to the Court’s expert psychiatrist until October 25, 2019, when he met with

the psychiatrist for three hours.

It provided Dr. Alexander was to be provided certain documents as

recited in that Order to answer the Court’s questions, unless the Court’s

expert psychiatrist requested more. More was requested and provided, and

all were invited to tender more information to Dr. Alexander, if they

desired.

Dr. Alexander was asked by counsel for [Wife] to do more than

merely answer affirmatively or negatively each question from the Court.

Additionally, he was asked to elaborate, i.e., explain why [Husband] was

competent and to explain what testing was performed and what else was

considered to rule out malingering. Dr. Alexander’s November 1, 2019,

report addresses competence to testify and participate in this litigation but

does not address mental competence as may be affected by mental illness.

Dr. Alexander was asked by counsel for [Wife] to pursue

[Husband’s] competency (in terms of mental capacity) to a conclusion,

explaining to the Court in greater detail [Husband’s] competence to work

from a psychiatric perspective. Initially, Dr. Alexander, concluded he saw

- 48 -

no reason [Husband] would want to appear incompetent, lest he sabotage

his chance to obtain custody of his adolescent daughter. Dr. Alexander

requested the entire file, so he could review all of the evidence, although a

short time to do so existed. Dr. Alexander testified he obtained from

[Wife], or her counsel, the transcript of [Husband’s] previous testimony,

and obtained a flash drive, from Dr. Hankins, with Dr. Hankins’ entire file.

Dr. Hankins included in his report, as supplemented, an itemization of what

was in that file.

After a second administration of the Structured Inventory of

Malingered Symptomatology, and considering the secondary gain in a

litigation context that a demand for $2,200 monthly spousal support

presents, reviewing voluminous documents, and interviewing [Wife], and

concluding the pursuit of money inspired just such a sabotaging of his

testing to appear mentally ill, Dr. Alexander testified [Husband] was an

exaggerator, liar, and malingerer.[14]

Although the trial court denied Husband’s motion to strike Dr. Alexander’s

testimony, the court did order that Husband would be “afforded an opportunity to prepare

to cross examine Dr. Alexander at [Husband’s] convenience by deposition, or live

testimony December 6, 2019, when the Court [was set to] recommence this litigation.”

Upon careful review, we conclude that the trial court did not abuse its discretion by

denying Husband’s motion to strike Dr. Alexander’s testimony or by affording weight to

the testimony. We will address each of Husband’s arguments in turn.

First, Husband asserts that Dr. Alexander had an impermissible conflict of interest

because he was initially appointed by the trial court as a Rule 35 expert to determine

Husband’s competency and was subsequently retained by Wife to opine further on

Husband’s possible malingering and ability to maintain employment. As noted above,

the trial court stated in its August 2019 order that Husband had “deferred to the Court’s

desire to continue the case, to obtain an expert opinion as to [Husband’s] competency to

participate in this litigation or malingering.” (Emphasis added.) In appointing Dr.

Alexander, the court directed that he was “tasked with determining (1) if [Husband] is

competent; (2) if [Husband] is a person with a disability in need of a conservator; and (3)

if [Husband] requires a guardian ad litem to proceed with this litigation[.]” During trial,

Dr. Alexander testified that a necessary component of evaluating competency was to

screen the individual for malingering.

14

We note that although Dr. Alexander did acknowledge agreement with Wife’s counsel’s

characterization of his conclusion as having found Husband to be “an exaggerator, a liar, a malingerer,”

Dr. Alexander also clarified that he preferred the term, “malingerer,” to “liar,” and he did not use the

term, “liar,” in his own statements.

- 49 -

In Roach v. Dixie Gas Co., 371 S.W.3d 127, 146 (Tenn. Ct. App. 2011), this Court

clarified that Rule 35 does not contain a requirement that an expert witness appointed

under the rule remain “independent.” As this Court elucidated:

Rule 35 is broadly written, intended to govern the myriad situations in

which a party’s physical or mental state becomes an issue in litigation and

the truth of the claims may be ascertained only by an examination of the

party’s body or mind. Rule 35 requires only that the examination be done

by a “suitably licensed or certified examiner.”

Id. (quoting Tenn. R. Civ. P. 35.01). In Roach, a personal injury case, the trial court,

upon the defendants’ motion, appointed a Rule 35 expert witness physician to examine

the plaintiffs concerning their alleged injuries. 371 S.W.3d at 143.

Although we find Roach to be instructive in terms of the communication allowed

between a Rule 35 expert and each party’s counsel, we recognize that the situation in

Roach was different from the situation in the instant action. In Roach, one of the issues

raised on appeal was whether the trial court had erred in granting the defendants’ motion

to appoint a Rule 35 expert. Id. at 142. In contrast, here, the trial court had initially

appointed an expert witness to conduct a forensic psychological evaluation of Husband

prior to trial in a set of agreed orders, referring first to Dr. Koller in its June 2016 order as

Wife’s expert witness and then likewise to Dr. Young in its June 2017 order as Wife’s

expert witness. In its April 2019 “Amended Rule 35 Order,” the court appointed Dr.

Kronk to succeed Dr. Young; however, the court now termed this appointment “as the

Court’s expert to evaluate [Husband] regarding any mental conditions he may have that

regard his ability to parent and alleged inability to work.” Husband did not object to the

appointment of Dr. Kronk, who ultimately declined the appointment.

As to Husband’s psychological witness, the trial court clarified in its April 2019

order that Dr. Grello had been retained by Husband to act as his “evaluating

psychological witness.” See Roach, 371 S.W.3d at 146 (noting “the well-established

proposition that, so long as the plaintiff had the right to select his own doctor to testify as

to his physical or mental condition, fundamental fairness demands that the defendant

have the same right”). Upon Wife’s motion, the court limited Dr. Grello’s deposition

testimony to the scope of her report based on the court’s finding that Husband had not

provided Dr. Grello with all of his relevant records and had not informed her that he was

seeking alimony. Husband did not call Dr. Grello as a witness at trial; however, Dr.

Grello’s May 2019 deposition was presented as an exhibit and was reviewed by the court

prior to the court’s appointment of Dr. Alexander. As described above, the court then sua

sponte appointed Dr. Alexander in August 2019 as the court’s Rule 35 expert. Husband

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essentially argues that the court abused its discretion by allowing Wife to co-opt Dr.

Alexander as her expert witness.

Noting that a trial court “may choose to appoint its own objective, non-adversarial

medical expert,” the Roach Court stated that “in any case in which the trial court appoints

its own expert, the trial court may seek to ‘preserve’ the ‘independence’ of the court’s

expert.” Id. (quoting Ewing v. Ayres Corp. 129 F.R.D. 137 (N.D. Miss. 1989)) (emphasis

added). As this Court further explained:

[L]itigation may necessitate a Rule 35 examiner under a number of

circumstances, including the appointment of an independent examiner for

the court. In such a situation . . the trial court may set the parameters for

the parties’ contacts with the examiner, at the court’s discretion. Any such

limitations, however, are not mandated by Rule 35.

Id. at 147 (additional internal citation omitted).

In its August 2019 appointment order, the trial court set forth parameters related to

when and how counsel for each party would be allowed ex parte communication with Dr.

Alexander. Other than providing documents enumerated by the trial court to Dr.

Alexander, neither party’s counsel was to engage in ex parte communication with him,

unrelated to the appointment order or logistical matters, until he had submitted his report.

The order further provided that following publication of the report, Dr. Alexander would

be “available for an interview, depositions for proof, or discovery” upon the request of

either party and at the expense of the requesting party. We determine that the trial court’s

appointment order complied with the requirements of Rule 35. See id.

Moreover, although we recognize the rapid sequence of events occurring between

the November 1, 2019 publication of Dr. Alexander’s report and his November 13, 2019

trial testimony, we further determine that each party’s ex parte communication with Dr.

Alexander following the report’s publication was in compliance with the order. Each

party’s counsel respectively interviewed Dr. Alexander, who testified at trial that after

submitting his report and speaking to Wife’s counsel, he had requested additional

documents from Wife’s counsel and had based the modification of his opinion in part on

those documents. Wife’s counsel notified Husband’s counsel and the GAL of his intent

to question Dr. Alexander in greater depth regarding the possibility of Husband’s

malingering and employability and his intent to forward more documents requested by

Dr. Alexander, as well as of Wife’s willingness to pay the additional cost for Dr.

Alexander to perform “more work” subject to a request for an award of litigation

expenses. We conclude that the trial court did not abuse its discretion by declining to

find that Dr. Alexander had an impermissible conflict of interest.

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Second, Husband posits that the trial court should have ordered Dr. Alexander’s

testimony stricken because it was unclear which records Dr. Alexander relied upon in

forming his opinion. Specifically, Husband asserts: “The testimony of Dr. Alexander is

difficult to follow as he states he has reviewed some records, does not know how he

obtained all the records, has some records he has not reviewed and ‘thinks’ he was

provided social security records.” We note that the documents provided to Dr. Alexander

were voluminous, in his words, “a pile that was over a foot tall” reviewed prior to

publishing his report and “three thousand pages” subsequently sent to him. Dr.

Alexander described his rationale for concentrating on some information, what he termed

the “clinical pieces,” more than others, such as court filings. According to Dr.

Alexander, prior to writing his report, he was under the “misimpression” that he was to

avoid Dr. Grello’s records, and he subsequently reviewed her records and deposition

testimony prior to trial. He stated that although he had Dr. Fisher’s deposition during his

initial review, he subsequently received Dr. Merchant’s, Dr. Hankins’s, Dr. Henderson’s,

and LCSW Roach’s records, as well as depositions from Dr. Hankins and Dr. Merchant.

The trial court found in its order denying Husband’s motion to strike that after

submitting his report, Dr. Alexander had “requested the entire file,” and had “obtained

from [Wife], or her counsel, the transcript of [Husband’s] previous testimony” and “a

flash drive . . . with Dr. Hankins’ entire file.” As the court noted, Dr. Hankins had

included in his supplemented report “an itemization of what was in that file.” Husband

argues, for example, that Dr. Alexander should have realized, prior to writing his report,

that Husband had requested spousal support in his counter-complaint, which was among

the court filings initially sent to Dr. Alexander. Husband has a point as far as it goes.

However, given the trial court’s discretion in determining the reliability of expert witness

testimony and the fact that the court heard Dr. Alexander’s description of the bases for

his opinion during trial, we do not discern any abuse of discretion in the trial court’s

decision not to strike Dr. Alexander’s testimony based on his description of the records

reviewed. See Brown, 181 S.W.3d at 275 (“[T]he trial court enjoys the same latitude in

determining how to test the reliability of an expert as the trial court possesses in deciding

whether the expert’s relevant testimony is reliable.”).

Finally, Husband asserts that the trial court abused its discretion in declining to

strike Dr. Alexander’s testimony because of the testimony’s “contrar[iness]” to the trial

court’s scheduling order, “any rules of discovery,” and other expert testimony in the case;

an “erroneous” result; and “injustice” to Husband. The scheduling order to which

Husband refers was entered by the trial court on January 24, 2019, pursuant to the court’s

Local Rule 119.05, and required that “[o]pposing expert witnesses” be “disclosed no later

than (60) days prior to trial” and that expert witness depositions be completed no later

than thirty days prior to trial. This order was clearly superseded by the trial court’s order

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appointing Dr. Alexander, which set forth a specific schedule for submission of Dr.

Alexander’s report, communication with counsel, and testimony. As to “any rules of

discovery,” Husband fails to specify the rules to which he is referring and thereby waives

any argument based on discovery rules. See Newcomb v. Kohler Co., 222 S.W.3d 368,

401 (Tenn. Ct. App. 2006) (“The failure of a party to cite to any authority or to construct

an argument regarding his position on appeal constitutes waiver of that issue.”).

Husband’s assertion regarding contrariness to the trial court’s scheduling order and rules

of discovery is unavailing.

Husband’s contentions regarding “contrar[iness]” to other expert testimony, a

purportedly “erroneous” result, and “injustice” to Husband are related. The experts who

testified at trial were Dr. Alexander and Dr. Hankins, both of whom concluded, as

pertinent to the issues on appeal, that Husband was capable of returning to employment

comparable to the position he had formerly held at ORNL. The trial court’s credibility

assessment of these experts who testified at trial is entitled to great weight on appeal. See

Burden, 250 S.W.3d at 905 (“Because the trial judge is in the best position to assess the

credibility of the witnesses, such credibility determinations are entitled to great weight on

appeal.”). “However, with regard to expert opinion that appears in the record purely in

the form of written documents, an appeals court ‘may draw its own conclusions about the

weight and credibility of that testimony, since we are in the same position as the trial

judge.’” Id. (quoting Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997)).

Upon exhaustive review of the voluminous record before us, we determine that

when Dr. Alexander’s opinion diverged from the other psychiatric practitioners’ opinions

(and from his own initial opinion), the basis for his change was reasonably supported by

his rationale and references to testing results that indicated malingering on Husband’s

part. For example, in its final decree, the trial court found in part that Husband’s

malingering “was not discovered until this divorce case because none of his treating

physicians ever sought psychological testing for [Husband]; instead they simply relied on

his own self-reporting of symptoms.” Regarding the efficacy of self-reporting of

symptoms in this context, Dr. Alexander testified:

[S]elf reports, especially in the court of law, lack credibility and have to be

– there has to be information that will validate that. Most psychiatrists and

– in this case, Dr. Fisher, he did not do any objective testing. So he only

could rely on the subjective information coming from [Husband] and his

subjective interpretation of how he presented. And so without that

objective verification, it makes Dr. Fisher’s diagnosis [of schizo-affective

disorder] tentative.

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Husband particularly takes issue with the trial court’s treatment of Dr. Grello’s

report and deposition testimony in comparison to Dr. Alexander’s trial testimony. In

weighing the two, the trial court in its final decree stated the following in pertinent part:

Dr. Grello performed numerous tests on [Husband]. The Wechsler Adult

Intelligence test (WAIS-IV) indicated [Husband] has an IQ [intelligence

quotient] of 134, placing him in the very superior range. Dr. Grello also

gave [Husband] the Rorschach Ink Blot test, but invalidated this test

because she discovered that [Husband] had researched and reviewed

materials on the test and that fifteen of his answers were directly out of the

book “Big Book of Secrets” which [Husband] indicated he had purchased

and read. Dr. Grello also administered the MMPI-2 [Minnesota

Multiphasic Personality Inventory], for which [Husband’s] F-score, the

validating score, was again elevated as well as the F-back (F-B) validating

score were high. Contrary to the other evaluating physicians, Dr. Grello

denied that this indicated malingering. Yet these validating scores are

designed to test for malingering or exaggerating. Again, this court notes

that at no time was Dr. Grello ever informed that there was a secondary

gain aspect to this case. Her evaluation was geared only towards custody

issues. She never read the pleading in this case to see that alimony was

being sought, nor did she ever review the deposition of [Husband]. Dr.

Grello was also not provided with all of [Husband’s] medical records. She

was also not aware that Dr. Smith had previously administered the MMPI.

For these reason[s] the court questions the conclusions drawn by Dr. Grello

as she clearly did not have the full picture of the case in which she was

hired to render an expert opinion. Dr. Grello also indicated that she did not

realize that malingering was going to be such an issue in this case otherwise

she may have given [Husband] the SIMS test which is the “gold standard”

for determining malingering.

Our review of Dr. Grello’s report and deposition testimony support the trial court’s

findings in this regard. Additionally, we note that the trial court did not base this

comparison on any credibility determination as to Dr. Grello, which was proper given

that the court did not hear Dr. Grello testify during trial. See Burden, 250 S.W.3d at 905.

Husband also takes issue with “the scrutiny [the trial court] placed” on Dr. Grello

in comparison to Dr. Alexander. We find this argument unavailing as well because the

orders entered by the trial court confining Dr. Grello’s testimony to her report and

reviewing communications with Dr. Grello were upon Wife’s motions during the pre-trial

discovery phase of the proceedings and upon specific findings regarding Dr. Grello’s

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initial refusal to provide certain documentation. Husband could have filed such a motion

to limit Dr. Alexander’s testimony prior to trial and did not.

We emphasize that “it is within the discretion of the trial judge to conclude that

the opinion of certain experts should be accepted over that of other experts and that it

contains the more probable explanation.” Hinson, 654 S.W.2d at 676-77. Contrary to

Husband’s argument, the trial court’s denial of his motion to strike Dr. Alexander’s

testimony was not based on an erroneous assessment of the evidence or reasoning that

caused an injustice to Husband. The trial court did not abuse its discretion in declining to

strike Dr. Alexander’s expert testimony or in affording it weight when considering

Husband’s employability.

VII. Alimony in Futuro

Husband contends that the trial court erred by denying his request for “the alimony

he sought at trial.” Although Husband did not specify an amount or type of alimony in

his counter-complaint and has not done so on appeal, he confirmed through his testimony

at trial that he was seeking $2,200.00 monthly in alimony for “a life term,” which

indicates a request for alimony in futuro.15 Husband specifically argues that “the weight

of evidence established that Husband was unable to work, needed alimony and that Wife

had the ability to pay.” We disagree and conclude that the trial court did not abuse its

discretion in denying Husband’s request for alimony in futuro.

Tennessee law recognizes four types of spousal support: (1) alimony in futuro,

also known as periodic alimony; (2) alimony in solido, also known as lump-sum alimony;

(3) rehabilitative alimony; and (4) transitional alimony. Tenn. Code Ann. § 36-5-121(d)

(2021); Mayfield v. Mayfield, 395 S.W.3d 108, 115 (Tenn. 2012). Our statutory scheme

indicates a legislative preference favoring the short-term forms of spousal support,

rehabilitative and transitional alimony, over the long-term types of support, alimony in

futuro and alimony in solido. See Tenn. Code Ann. § 36-5-121(d)(2)-(3); Mayfield, 395

S.W.3d at 115; Riggs v. Riggs, 250 S.W.3d 453, 456 (Tenn. Ct. App. 2007). Alimony in

futuro, at issue in the case at bar, may be appropriate, however, when rehabilitation of the

economically disadvantaged spouse is not feasible. See Tenn. Code Ann. § 36-5-

121(d)(4). Tennessee Code Annotated § 36-5-121(f)(1) (2021) further provides:

Alimony in futuro, also known as periodic alimony, is a payment of support

and maintenance on a long term basis or until death or remarriage of the

recipient. Such alimony may be awarded when the court finds that there is

15

The amount requested by Husband of $2,200.00 was approximately equal to the seventy-five percent of

the parties’ mortgage payment that Wife testified she had informally agreed to pay when the parties

separated and during the pendency of the divorce only.

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relative economic disadvantage and that rehabilitation is not feasible,

meaning that the disadvantaged spouse is unable to achieve, with

reasonable effort, an earning capacity that will permit the 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, considering the relevant

statutory factors and the equities between the parties.

It is well settled that “trial courts in Tennessee have broad discretion to determine

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

duration of the award.” Mayfield, 395 S.W.3d at 114; see also Fickle v. Fickle, 287

S.W.3d 723, 736 (Tenn. Ct. App. 2008).

Tennessee Code Annotated § 36-5-121(i) (2021) provides statutory factors to be

considered as guidance when determining the nature and amount of an alimony award.

In its final decree, the trial court set forth specific findings of fact applicable to each

statutory factor as follows:

(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[.]

The court has already made its finding regarding the relative

earning capacity of each party being similar. [Husband’s] last

employment had his earning at $80,000+ per year. Both parties filed

affidavits of income and expenses. The court has concluded that

[Husband] has the ability to work earning in the range of $65,000-

$80,000 per year, yet he has chosen not to do so. The court has

further concluded that this is due to [Husband’s] lack of motivation,

and not due to incapacity due to any mental illness.

(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[.]

Both parties in this case are highly educated. Neither party

requires any additional education to secure employment.

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(3) The duration of the marriage[.]

This is a twenty-two (22) yearlong marriage. The parties

separated in 2015 and the divorce has been pending since 2015, so

the parties resided together for 18 years.

(4) The age and mental condition of each party[.]

Both parties are of similar age and the court has

This text is long and has been trimmed here. Open the source document for the complete record.