The opinion
04/17/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 14, 2023 Session
ANGELA LOUINE NIEMEYER v. GLENN PAUL NIEMEYER
Appeal from the Circuit Court for Hamilton County
No. 17D2367 John B. Bennett, Judge
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No. E2022-01690-COA-R3-CV
___________________________________
This is a divorce action involving, inter alia, the classification of property, equitable
valuation and division of marital property, and support for an alleged disabled adult child
beyond the age of 21. After our exhaustive review, we find that the preponderance of the
evidence supports the trial court’s determinations in this matter. Therefore, we affirm the
trial court’s judgment in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.
John P. Konvalinka, Chattanooga, Tennessee, for the appellant, Glenn Paul Niemeyer.
Sandra J. Bott and William H. Horton, Chattanooga, Tennessee, for the appellee, Angela
Louine Niemeyer.
Christina Mincy, Chattanooga, Tennessee, guardian ad litem.
Misty L. Harris, Chattanooga, Tennessee, attorney ad litem.
OPINION
I. BACKGROUND
Angela Louine Niemeyer (“Wife”) married Glenn Paul Niemeyer (“Husband”) on
September 5, 1992. Two children were born of the marriage, Alexandra (“Ali”) and
Brooke (“Scout”); both had reached the age of majority as of the date of this appeal.
During these proceedings, Wife was in her mid-50s and Husband turned 60. Wife
has served as the general manager of the Bluff View Art District (“BVAD”) in Chattanooga
since 1993, a business primarily owned by her parents. According to Wife, her work
schedule is continuous as she is on the BVAD property essentially 24/7 for security and
liability reasons. Wife holds a law degree and passed the Tennessee Bar Exam, but she has
never practiced law outside of using her skills on behalf of the family business. As of
September 19, 2019, her annual salary was $85,000. Wife testified that she was the primary
breadwinner for the family up until the last four or five years of the marriage. She claimed
that Husband made “very little” income from 1993 until 2006 or 2008.
Husband had a Master’s Degree at the start of the marriage and received a Doctorate
in Molecular Biology approximately seven years into the marriage. He was employed by
Auburn University from 1993 to 2008 and the University of Alabama in Birmingham from
2008 to 2015. Over that span of time, Husband lived in Alabama during the week and
commuted home to Chattanooga on weekends. His Social Security earnings statements
show zero reported income four out of five years from 1992 to 1996. His highest annual
income from 1992 to 2002 was $37,700. Sometime around 2006 or 2008 to 2015, Husband
began to contribute “anywhere from $1,000.00 to $2,000.00 per month depending on what
the pay scale was for the particular year.”
Upon losing funding for his research in 2015, Husband returned to Chattanooga.
Wife’s parents began to give the couple $500 per week, an increase from the $200 per week
they previously contributed to help with Ali’s expenses. Wife acknowledged that Husband
worked for BVAD for four weeks in 2015 after returning from Alabama and “maybe”
another four weeks in 2016. According to Wife, Husband was paid for the labor, received
a 1099, and she reported the income on the parties’ personal tax return. Husband was hired
by the University of Tennessee at Chattanooga in 2016 and worked there through August
of 2018. Wife claims Husband gave her a total of $3,300 in 2016 and $1,100 in 2017.
Husband paid no support from November 2017 until February 2018, when he began to pay
$600 per month for both children as part of a mediated agreement.
Wife and the children lived in an apartment in BVAD throughout the marriage.
Wife was the primary caretaker for the children, including schooling, homework, events,
medical appointments, and all aspects of daily life. Upon Husband’s return to Chattanooga,
Wife began spending the night at her parent’s home. Husband remained in the marital
residence with the children at night. Husband admitted that Wife was “about 150 yards”
away. This arrangement lasted from late 2016 through 2017.
On November 1, 2017, Wife filed her complaint for divorce along with an ex parte
petition for order of protection. Angie Supan, a 23-year BVAD employee, who worked
weekends in the shop directly below the Niemeyer apartment, later testified to hearing
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“loud yelling” and “angry screaming” from Husband throughout her employment. She
claimed personal knowledge that the children were present during these episodes, which
sometimes lasted 30 minutes. She overheard Wife’s voice “in distress.” Lisa Grafton,
Wife’s sister, also testified to observing Husband call Wife profane names and accusing
her of multiple affairs, sometimes in front of Ali. She recalled witnessing Husband red
faced and angry, and she viewed texts from him telling Wife he was coming and “you
better make sure you’re safe.” According to Ms. Grafton, Husband stated in Ali’s presence
that he was not Scout’s father. She described Scout’s demeanor as happy outside the
presence of Husband. Wife confirmed that the children had seen Husband’s
“uncontrollable rages,” witnessed him spit in her face, and shout obscenities. She stated
that the children would become sick to their stomachs during these outbursts.
On November 13, 2017, following a contested hearing, an order of protection
(“OP”) was entered that prohibited Husband from having contact with Wife and the
children for one year. When the OP expired, an agreed restraining order was entered, which
provided for no contact between the parties. A mediated agreement was adopted by the
trial court on February 14, 2018, in which Husband agreed to attend family counseling with
the children and to pay $600 per month in child support pending more accurate income and
expense information. His stated income at that time was $3,433.34 per month.
In September 2018, Husband began working with the Centers for Disease Control
and Prevention (“CDC”) in Atlanta. He earned $78,444 per year at the CDC in 2019, where
he participates in a federal pension plan and 401(k). Wife always had paid Husband’s
health insurance until he began employment at the CDC; she continued to pay his yearly
car insurance through the date of trial in the amount of $2,095.32. The family counseling
ceased when Husband moved to Atlanta in September 2018.
On October 22, 2018, Wife filed an amended complaint asserting that Ali was
entitled to child support as an adult handicapped child pursuant to Tennessee Code
Annotated section 36-5-102(k)(2). An agreed order dated October 31, 2018, provided that
“any child support or other arrearage or credits shall be retroactive to the date of filing of
the Complaint for Divorce.”
The trial spanned a year, being heard on September 18, September 19, and
December 5 of 2019, and January 14, January 16, and September 24 of 2020. The parties
stipulated grounds for divorce existed and neither sought alimony. The parties own no
jointly held real property. Wife has no retirement plan, pension, IRA or 401(k). The
primary marital asset is Husband’s Alabama teacher’s retirement pension (“Pension”), with
a gross monthly amount of $2,089.59. He began to draw the Pension after turning 60 in
October 2020. On the second day of trial, the court ordered Husband to begin child support
payments for Scout in the amount of $1,555.57 per month ($844.57 for 39% of private
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school tuition and $711 in child support).1 The issue of support for Ali, who was not called
to testify, was deferred.
SCOUT
Jennifer Gardner Cummins, a licensed professional counselor, testified that she
began seeing Scout in 2016 after Husband returned to the Chattanooga area. Ms. Gardner
Cummins reported that Scout had witnessed her father yelling, cursing, name calling, and
throwing things. It was reported that he once pushed Scout down while in an altercation
with Ali.2 The therapist diagnosed Scout with parent/child relational problems due to the
conflict and stress in the home in 2017. Wife later related that when Scout was younger,
she had responded to the yelling in the home by going into her room and entering her closet.
As noted above, Husband, Scout, and Ali engaged in family therapy from April
2018 through September 15, 2018, with Cindy Ensminger. The appointments ceased once
Husband moved to Atlanta. Scout reported that she desired no contact with her father and
displayed symptoms of anxiety following the Ensminger therapy sessions.
Ms. Gardner Cummins opined that Scout should have family therapy with Husband
but expressed concern for the child. According to the therapist, Scout cried upon thinking
about reunification and stated that she wanted her father to seek treatment for his behavior.
It was agreed that Husband would attend counseling with Scout, with no contact outside of
the therapy. They restarted therapy during the trial around January or February 2020.
Husband ceased the appointments in April 2020.
Husband admitted his full-time presence in Chattanooga had a negative effect on
the children and “even the family dog.” He acknowledged that his greatest failure is being
a “poor father” and that he put his career ahead of everything else in his life. Husband
admitted to yelling, screaming, and calling his wife obscene names in front of the children
and observed that his behavior had caused them harm. He expressed sorrow for what he
had put the children through and “wouldn’t wish that on anybody.” He admitted to raising
his voice to Ali and acknowledged that Scout had observed “explosive anger” from him
1
By both parties’ agreement, Scout began attending Girls Preparatory School (“GPS”) in 2015.
Tuition for the school year 2019-2020 was $24,807, excluding the cost of required school trips and
equipment. Husband was in favor of Scout attending GPS and signed the contract for her to enroll, but,
according to Wife, he subsequently refused to contribute to her tuition and contended it was the
responsibility of Wife and her father. Wife paid the GPS tuition in the amount of $50,249 from November
1, 2017, the date the divorce was filed, through September 19, 2019.
2
Husband asserts that he did not get in a physical fight with Ali. He maintains that “Ali punched
me in the chest. I laughed at her ….” and “I broke her brush and threw it.” He acknowledged that he
became angry because “they had called her mother, and I knew her mother was taping everything.” He
believed that Wife was going “to say that I’m abusing my children … because it’s the only way for them
to get me out of the house….”
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toward Wife. During the trial, he became angry upon cross examination and admitted that
Scout is afraid of him when he is upset. Husband conceded that he failed to follow the
recommendations of the family therapist.
ALI
Ali’s disability is best described as developmental delays. Wife testified as follows
regarding her older child: “She has severe disabilities. She’s—she’s very anxious. She has
to stay with a set routine and as she is getting older, it is harder and harder to change that
routine without her becoming very anxious and picking her fingers and other parts of her
body.” Wife related that Ali had issues with fine motor skills and language from a young
age. Ali was tested and found unable to continue in a pre-kindergarten program at Bright
School. She attended a resource program at the Lutheran School but was relocated to
Silverdale Baptist Academy’s IMPACT program by the third grade. Ali stayed in the
IMPACT program, which is for children with moderate to severe disabilities, all the way
through 12th grade. She never transitioned to any mainstream type of schooling. Wife
also took Ali to Honors Learning Center and hired a private tutor two or three times a week,
transporting Ali after school. During the summers, Ali would attend the IMPACT Program
summer camp. She began going to therapy in the 12th grade. Ali has a “certificate of
attendance” in place of a high school diploma.
Wife’s expert witness was William Wray, a licensed clinical psychologist, a board
certified disability consultant, and a board certified forensic examiner. He has a Master’s
Degree and an Ed.D. in Clinical Psychology. He has been licensed as a psychologist in
Tennessee since 1980. Dr. Wray administered the Wechsler Adult Intelligence Scale, and
three reading tests from the Woodcock-McGraw-Werder Mini-Battery of Achievement.
He described Ali as “very naïve” and displaying patterns of being “intellectually limited.”
He found her test results to be in the “low, very low range.” He stated: “If we generated
an IQ score, prorated an IQ score, she would have an IQ score of around 60 based on the
procedure I administered.” He opined Ali would have a vocational access code rating of
1, on a scale of 1 to 6, which, according to Dr. Wray, means her comprehension would
pose quite an impairment to her in terms of safety in the workplace. He described Ali’s
math skills as “extremely limited,” noting that she could not perform simple problems
involving money or collect change from a purchase. Her math rating was 1, or on a third-
grade level, which generated a code 1 for vocational purposes. He found that she had
reasoning/math/language code scores of 1/1/1, all very low. In Dr. Wray’s opinion, Ali is
“severely disabled,” and he could not see her taking care of herself in the future without
considerable guidance and support. He did not envision her entering the world of work,
even with considerable supervision. Dr. Wray opined that Ali is at risk of being exploited;
would need a highly sheltered job; and is unemployable in a competitive situation. He
observed that there were no sheltered jobs in Chattanooga that Ali might reasonably
manage. According to Dr. Wray, Ali’s severe impairment was noticeable and would
further deteriorate over time.
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Wife and Husband both recognized that they “would be taking care of [Ali] the rest
of her life.” Husband contends that Ali’s struggles do not rise to the level of a severe
disability. He agreed her IQ is in the “60–70” range; Husband acknowledged that she
cannot travel on her own, has never ridden a bicycle; cannot drive a car; and has trouble
with math, time, and sensory issues. He indicated feeling uncomfortable with Ali living
on her own and would be concerned about her physical well-being. He noted that Ali
cannot cook and it is a struggle for her to “microwave some stuff.” When asked where Ali
could work outside of her family, he claimed that there are agencies for people with severe
disabilities, such as Goodwill. He opined that Ali could be a greeter at a restaurant or
answer phones in an office. He asserted a belief that she could take an Uber to work.
Husband agreed that she cannot handle money.
Ali works 14 hours per week at BVAD with Ms. Grafton, the bookkeeper. Ms.
Grafton described Ali’s very limited abilities and frequent mistakes in trying to perform
routine tasks, such as making copies on the copy machine, laminating items, and stamping
checks. She observed Ali is productive at work about 5% to 10% of the time but otherwise
plays with her phone or looks out the window. Ms. Grafton characterized Ali’s job duties
as “an exercise” for her; she has not seen any progress or improvement in Ali. She observed
that it is very difficult for Ali to microwave a frozen dinner or make change for a dollar;
she does not know the value of a dollar and cannot take public transportation. Ms. Grafton
related that Ali cannot cross a busy street by herself because she does not know to look
both ways and cannot judge when to go. She has a habit of picking at her fingers and
becomes “preoccupied easy.” Ms. Grafton noted that Ali does not socialize with people
her own age.
Ms. Supan, who has known Ali since age two, observed that the young woman lacks
the ability to drive a car, make change, write a check, or pay for meals. She has never seen
Ali reading. She observed that Ali cannot cross the street unassisted and does not
consistently watch for traffic. Ms. Supan testified that Ali cannot keep time, has never
shopped for groceries, and primarily watches the others when she attends yoga class.
According to Ms. Supan, Ali does not have a sense of her surroundings.
WIFE’S SEPARATE PROPERTY
In 2014, Wife was gifted a percentage interest in BVAD. Restrictions exist on
Wife’s ability to sell her interest, with her parents having the right of first refusal. Wife
holds an ownership interest in the following family-owned entities: River Gallery, Inc.
(“RG”); BVAD; Portera Family Limited Partnership (“PFLP”); and Portera Family
Management Limited Liability Company (“PFMLLC”) (collectively, “Portera Entities”).
Wife owns 100% of PFMLLC, which owns a 1% general partner interest in PFLP. Wife
has a 38% ownership interest in BVAD and RG.
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Wife’s expert, Matthew Steltzman, testified that he oversees all valuation and
litigation support services for his accounting firm. He has a Bachelor of Science in Finance
and a Master’s in Business Administration. Mr. Steltzman is a Certified Valuation Analyst
according to the National Association of Certified Valuators and Analysts; he is an
Accredited Senior Appraiser through the American Society of Appraisers. In his review,
Mr. Steltzman interviewed Wife and analyzed the 2017 federal tax returns for the Portera
Entities, the 2014 personal returns for Wife’s parents, calculations prepared by Husband’s
counsel, the report of Husband’s expert, an affidavit from a certified public accountant at
the Decosimo accounting firm, and an email from an attorney at the Chambliss, Bahner &
Stophel law firm. Mr. Steltzman opined that the value of Wife’s minority interests in the
Portera Entities currently had a negative value of ($-168,000) due to business losses since
2014, the year in which they were purportedly given to her. According to Mr. Steltzman,
BVAD and RG do not earn money, and as those companies that Wife owns a greater
percentage interest in lose money, she is losing more in those entities. Mr. Steltzman
reported that RG had liabilities of $275,000 in 2014 and $414,534 in 2017.
According to Mr. Steltzman, the value of Wife’s interests on the 2014 gift tax return,
which he accepted, was $177,736. The gift tax return used a balance sheet approach, with
intercompany receivables/payables and shareholder loans from Wife’s father included on
the balance sheet. Mr. Steltzman observed that the 2017 tax return for BVAD reflects the
shareholder loans were reduced by $59,039 during the year, indicating the loans were being
repaid. In his view, there is no indication that the loans were anything other than debt.
Husband’s expert, Shannon Farr, a Certified Public Accountant, testified that based
upon her review, the Portera Entities were “thinly” capitalized, as they appear on the
balance sheets to have a large amount of debt and small amount of equity. In Ms. Farr’s
opinion, the Portera Entities should be classified as equity rather than a liability because
the debt appears to consist of undocumented shareholder loans. She converted the $1.6
million in shareholder’s loans to capital contributions, changing Wife’s interest from a
negative to a positive. In Ms. Farr’s view, Wife’s interest in the Portera Entities appreciated
in the amount of $444,000 from the date she was gifted the interest in 2014 until the
December 2019 valuation. Ms. Farr accepted the original value of the 2014 gift to Wife as
reported but did not recapitalize the shareholders’ loans to capital in the 2014 values–only
in her 2017 valuation. Her beginning values for 2014 were: BVAD, $45,600; RG, $3,800;
PFLP, $64,168; and PFMLLC, $64,168. Ms. Farr agreed the 2017 tax return for BVAD
shows a reduction of the loan during the tax year. She also acknowledged her conversion
of the loans from Wife’s father to equity automatically increased the value of the Wife’s
interest, but there was no corresponding money added into the company, nor were the loans
removed as an asset from the other entities. Under Ms. Farr’s theory, Wife’s father would
not receive repayment for the monies loaned if the two properties were sold. She agreed
that Wife would hold a negative interest if she had not converted the shareholder loan to
capital contributions.
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On rebuttal, Mr. Steltzman questioned converting loans to equity for one entity but
failing to make similar conversions for the other companies. He observed that Ms. Farr’s
method “attribut[ed] a marital asset to Ms. Niemeyer that she does not have.” Mr.
Steltzman asserted that “[T]he cash was used when [Wife’s father] put it in and cash was
used up when he was paid back in those instances. So the cash is probably not existent in
the company anymore.”
On July 28, 2022, the trial court addressed the classification and award of separate
and marital property and found that the appreciation in value of Wife’s interests in the
Portera Entities should be given to Wife as her separate property. The court concluded that
Husband’s expert was more qualified and experienced concerning business valuations and
accepted Ms. Farr’s opinion of the appreciation in value of Wife’s separate property in the
amount of $444,000. The court acknowledged that the interest “is not itself readily liquid.”
The court addressed Husband’s claim that he provided a personal guaranty for a
1996 loan benefitting the 2014 gifted interest of Wife in the Portera Entities. Husband also
asserted that he did not receive compensation for work completed for the Portera Entities
in 2015 and 2016. Ms. Grafton, who is responsible for payroll in the accounting department
at BVAD, maintained that Husband was paid for any work completed at BVAD and that
he also received a tax document at the end of the year. Ms. Supan related that over 23
years, she observed Husband performing actual work at BVAD perhaps one or two times
in 2015 or 2016.
The trial court determined as follows: “There was no evidence the Court recalls that
the 1996 personal guaranty is now linked to the continued preservation and growth in value
of the asset. These alleged contributions are too vague and speculative to deem them real
and significant and directly linked to preservation and appreciation of the 2014-gifted asset
of the Portera family business interest.” As to Husband’s work for the Portera Entities, the
court found Wife’s testimony credible that Husband was compensated:
The Court credits Wife’s testimony that Husband was compensated.
Husband testified that in 2016 he contributed financially to the household.
This evidence, however, is much different from evidence of a homemaker or
family financial manager, providing real and significant contributions to the
household over many years, consisting of innumerable intangible as well as
tangible benefits over the years, directly linked to the preservation and
appreciation over time of a separate asset. Although there was reference to
financial contributions while Husband was out of state, it is hard to stretch
an out of state homemaker on par with a homemaker as traditionally
understood. For the foregoing reasons, the Court finds this asset, consisting
of the base gift and its appreciation was not statutorily transmuted and,
therefore, remains a separate asset.
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On November 22, 2022, the final decree of divorce was approved, adopted, and
incorporated the prior memorandum opinions upon the issues of Ali’s severe disability, the
classification and valuation of marital and separate property, the equitable division of
marital property and liabilities, and the issues of child support and arrearages. The Pension
was divided by the trial court 60% to Husband and 40% to Wife, commencing July 28,
2022. Husband was ordered to designate Wife as survivor beneficiary of no less than 40%
of the Pension. The court further found that each party’s portion of the Pension shall be
included in their income for child support purposes retroactive to July 28, 2022. Wife was
awarded $7,785.42 from Husband’s TIAA-CREF plan and Husband was ordered to
reimburse Wife $22,501 of the Smartbank Shortfall Loan.3
II. ISSUES
The issues raised by Husband in this appeal are restated as follows:
1. Whether the trial court erred in finding that Ali is severely disabled and
whether this finding created error in the court’s child support calculation.
2. Whether the trial court erred in awarding Wife child support arrearage.
3. Whether the trial court erred in determining that Husband would have no
visitation rights.
4. Whether the trial court erred in awarding Wife the entirety of the interest
in appreciation of Wife’s separate property.
III. STANDARD OF REVIEW
Our review of the trial court’s decision is de novo upon the record, and the trial
court’s factual findings are presumed correct, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); Alexander v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998).
The trial court’s conclusions of law are subject to de novo review, with no presumption of
correctness. S. Constructors, Inc. v. Loudon Cnty. Bd. of Ed., 58 S.W.3d 706, 710 (Tenn.
2001); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
“In all actions tried upon the facts without a jury, the court shall find the facts
3
The parties purchased a condominium as an investment in 2006. They obtained a home equity
line of credit on the property to pay credit card debt. When the condominium was sold in March of 2017,
there was a deficiency of $61,000. Husband refused to accept responsibility for the deficiency and initially
refused to come to closing on the sale until Wife secured a loan in her name to pay the debt. By January
14, 2020, she had paid $63,000 on the condominium loan at a rate of $1,935.34 per month.
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specially and shall state separately its conclusions of law and direct the entry of the
appropriate judgment.” Tenn. R. Civ. P. 52.01. If the trial court makes the required
findings of fact, appellate courts review the trial court’s factual findings de novo upon the
record, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn.
2014) (citing Tenn. R. App. P. 13(d)); Armbrister v. Armbrister, 414 S.W.3d 685, 692
(Tenn. 2013). “Appellate courts will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.” Wells v. Tennessee Bd.
of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
IV. DISCUSSION
a. DISABILITY
The trial court found that Ali is severely disabled and was severely disabled prior to
her turning 18 years of age. The court set Husband’s obligation at $906 per month,
beginning on October 1, 2022. Husband disputes the court’s finding of a severe disability.
In the alternative, he suggests a monthly obligation of $806.
According to Tennessee Code Annotated section 36-5-101(k),
(1) Except as provided in subdivision (k)(2), the court may continue child
support beyond a child’s minority for the benefit of a child who is
handicapped or disabled, as defined by the Americans with Disabilities Act
(42 U.S.C. § 12101 et seq.), until such child reaches twenty-one (21) years
of age.
(2) Provided, that such age limitation shall not apply if such child is severely
disabled and living under the care and supervision of a parent, and the court
determines that it is in the child’s best interest to remain under such care and
supervision and that the obligor is financially able to continue to pay child
support. In such cases, the court may require the obligor to continue to pay
child support for such period as it deems in the best interest of the child;
provided, however, that, if the severely disabled child living with a parent
was disabled prior to this child attaining eighteen (18) years of age and if the
child remains severely disabled at the time of entry of a final decree of
divorce or legal separation, then the court may order child support regardless
of the age of the child at the time of entry of the decree.
(3) In so doing, the court may use the child support guidelines.
(Emphasis added.).
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At trial, Husband asserted that Wife did not request support for Ali, who was 23
years old at the time, in her original complaint. He notes that no claim pursuant to
Tennessee Code Annotated section 36-5-101(k) was asserted and that the trial court did not
have jurisdiction to consider such claims based upon the legal doctrine of estoppel and/or
laches. Husband further argued that Wife’s amended complaint did not include any
allegation that Ali was disabled prior to attaining 18 years of age. He maintains that Wife
has only changed her position for her pecuniary benefit. The attorney ad litem appointed
for Ali argued that Ali is severely disabled within the meaning of Tennessee Code
Annotated section 36-5-101(k)(2).
The trial court found Ali to be severely disabled pursuant to the applicable statute,
finding the testimony of Ms. Supan and Ms. Grafton to be credible on the issue of “the
child’s ability to work, use transportation, and manage his or her financial affairs.” The
court cited Husband’s testimony that he would be uncomfortable with Ali living on her
own or crossing the street by herself. The court cited Lillard v. Lillard, No. M2019-02305-
COA-R3-CV, 2021 WL 861769 (Tenn. Ct. App. Mar. 8, 2021), finding Ali’s situation
similar. The court likewise relied on the testimony of both parents and the uncontradicted
corroboration of the other witnesses in finding that Ali’s disability preceded her turning 18
years of age. Despite Husband complaining that Ali was not “afforded the opportunity to
testify,” we find the representation she received from the guardian ad litem and attorney
ad litem protected her best interest. A preponderance of the evidence of record supports
the finding that the trial court did not err in finding that Ali is severely disabled.
Likewise, we hold that the trial court did not abuse its discretion in setting the
monthly support obligation. As noted in Lillard, 2021 WL 861769, at n.3, the trial court
was not required to use the child support guidelines in a section 36-5-101(k) matter. Tenn.
Code Ann. § 36-5-101(k)(3). The trial court’s determination was reasonable.
b. CHILD SUPPORT/ARREARAGES
We review child support decisions based upon the deferential “abuse of discretion”
standard. Richardson v. Spanos, 189 S.W. 3d 720, 725 (Tenn. Ct. App. 2005). The abuse
of discretion standard of review does not permit a reviewing court to substitute its
discretion for that of the trial court. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010). A court abuses its discretion when it causes an injustice by applying an incorrect
legal standard, reaching an illogical decision, or by resolving the case “on a clearly
erroneous assessment of the evidence.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335
(Tenn. 2010) (citing Lee Med., Inc., 312 S.W.3d at 524).
On March 14, 2022, the court found Wife’s yearly income to be $88,269.48 and
Husband’s yearly income to be $77,058. Dividing these amounts by 12, Wife’s monthly
gross income was found to be $7,355.79 and Husband’s $6,421.50. The court directed that
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these amounts be utilized to prepare the child support worksheets.
In the final decree, the court found that Wife was entitled to a judgment against
Husband for child support arrearages and children’s expenses through May 2022 in the
amount of $37,441.54. The child support obligation for Scout and Ali was set at $1,084
per month from June 1, 2022, through July 28, 2022. Commencing July 28, 2022, until
Scout reached age 18 on September 30, 2022, Husband’s child support obligation for both
daughters was $1,175 per month. The court declined an upward deviation based upon
Scout’s tuition expenses for GPS. From October 1, 2022 going forward, the support
obligation for Ali was $906 per month.
Neither party was completely satisfied with the trial court’s rulings as to support
and arrearages. Actual income amounts for both parties are uncertain. Wife argues that
the trial court abused its discretion in failing to include the Pension in Husband’s pre-decree
income for determining the correct amount of child support pursuant to the child support
guidelines. Husband began to receive the Pension in the gross amount of $2,089.50 per
month in October 2020, and received it continuously until the court made a division of the
Pension on July 28, 2022. After the filing of the divorce, Husband had little if any contact
with his daughters and paid child support below guideline levels for two years. There is
no evidence in the record that Wife received any portion of the Pension. Evidence reveals
that Husband resisted dividing the Pension during the pendency of the action. Also
asserting error by the court, Husband claims the division of the Pension in the final decree
should be used to satisfy his child support obligation for Ali; he demands a credit against
child support for the portion of the Pension awarded to Wife. Husband argues “the
beneficiary designation is intended to constitute support for Ali,” and he seeks credit for
what Wife receives monthly as marital property ($839.43) toward his child support
obligation ($906).
Upon review of the record in its entirety, we cannot find any abuse of discretion that
would permit us to find error in the trial court’s ruling. “[A] trial court’s discretionary
decision will be upheld as long as it is not clearly unreasonable, Bogan v. Bogan, 60 S.W.3d
721, 733 (Tenn. 2001), and reasonable minds can disagree about its correctness.”
Richardson, 189 S.W.3d at 725 (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001)). We defer to the trial court’s findings.
c. VISITATION AND PARENTING
Husband asserted in this appeal that Wife had alienated the children from him during
the pendency of the divorce case. He claimed that he was “improperly, unlawfully, and
wrongfully deprived of his residential time,” especially when he was a caregiver for Ali
and Scout and “was the primary caregiver during a portion of 2016 through November of
2017.”
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Wife testified regarding the time period when she did not live with the children from
late 2016 through November 2017. She related that Husband’s “anger just escalated” when
he did not get a new job outside of Chattanooga as soon as he hoped. She stayed with her
parents during this time because she believed her presence triggered his rage. She believed
that she “couldn’t remove Ali because of her routine” and she “was only a few hundred
yards away.” Wife observed that she was not out of the apartment except for in the evening.
She returned at 6 a.m. to get Ali and Scout up and to take Scout to school. She would
“keep them out for dinner, and then … take them back … when it was time for bed.” As
to weekends during this time period, Wife observed that she took her daughters to church
and to dinner after services. On Sundays, Husband drove to Maryville to see his father and
mow the lawn there. He did not take Ali and Scout with him on these trips.
Before the trial court applied the “best interest” factors found at Tennessee Code
Annotated section 36-6-106(a), it considered whether a limitation was applicable as set out
in Tennessee Code Annotated section 36-6-406(a)–(d). In the court’s March 14, 2022,
Memorandum Opinion, it determined that Husband had engaged in physical abuse of a
child and a pattern of emotional abuse of Wife pursuant to Tennessee Code Annotated
section 36-6-406(a)(2). That finding was supported by the testimony of Wife, her sister,
her employees, Scout, Scout’s therapist, and even Husband. The court took notice of the
one-year OP entered on November 13, 2017, Husband’s threats of physical violence
against Wife and her family, and a physical altercation with Ali. In particular, the trial
court found Ms. Supan’s testimony to be credible and “disturbing.” The court further
observed that Husband’s anger issues were “exceedingly evident” in his courtroom
demeanor, finding that he had issues managing his anger in court, with angry outbursts
directed at both counsel and the court. Husband admitted his volatility.
The court carefully weighed the statutory factors in Tennessee Code Annotated
section 36-6-106(a)(1)–(15), enumerating, discussing, and making findings of facts on
each section of the statute. Husband cites no portion of the record or transcript that does
not support the trial court’s findings of fact. He overlooks the fact that agreed orders
limiting his contact with the children and his failure to follow through on orders and
agreements to attend counseling are the reason he did not see Ali and Scout. Husband
offers no support of his allegations that he was denied hearings or his parental rights were
terminated. Husband’s counsel provided tenacious representation throughout the case but
provided no proof of parental alienation.
In the order issued just months before Scout turned 18, the court held that the
evidence belied Husband’s claim that he had a close relationship with his youngest
daughter. Her relationship was substantially greater with Wife than with Husband.
Additionally, Husband has yelled loudly and physically abused Ali. There is a substantial
amount of conflict between Husband and the family members. The court observed that
Wife has clearly performed the majority of the parental duties and been the primary
caregiver. Scout has a severed relationship with Husband and does not demonstrate the
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need for a close relationship with her father. The trial court correctly designated Wife as
the primary residential parent for Scout. Based on its review of the pertinent statutory
factors, the trial court properly implemented a parenting plan consistent with the best
interests of the youngest child.
We further note that the parenting issues are now moot, as both children are over
the age of majority. “To be justiciable, an issue must be cognizable not only at the
inception of the litigation but also throughout its pendency.” Norma Faye Pyles Lynch
Family Purpose LLC, 301 S.W.3d 196, 203–04 (Tenn. 2009). An issue becomes moot if
an event occurring after the commencement of the case extinguishes the legal controversy
attached to the issue, Lufkin v. Bd. of Prof’l Responsibility, 336 S.W.3d 223, 226 (Tenn.
2011), or otherwise prevents the prevailing party from receiving meaningful relief in the
event of a favorable judgment, see Knott v. Stewart Cnty., 207 S.W.2d 337, 338–39 (Tenn.
1948).
d. VALUATION OF WIFE’S SEPARATE PROPERTY
Wife submits that her interests in the Portera Entities are her separate property and
any appreciation in value of those interests from the date of the transfer from her parents
is her separate property. Husband submits that the appreciation is marital property.
Husband claims that he provided a personal guaranty for a business loan benefitting
the 2014 gifted interest. When asked about a business loan co-signed by Husband, Wife
responded that although he did sign the loan in the 1990s, no marital funds were used to
repay the loan, and she had no ownership interest in the Portera Entities until 2014. The
trial court found no evidence that this loan benefitted the gifted interest 18 years after the
fact. Husband also alleged that he worked for BVAD “without pay throughout 2015 and
2016 when he maintained a separate/second job.” He failed, however, to put a value on
what he claims he significantly contributed between 2014 and 2017 which gave rise to the
alleged increase in value of Wife’s separate property. His expert, Ms. Farr, gave no
testimony that any actions of Husband contributed to the alleged increase in value.
Moreover, the testimony of Wife and other witnesses supports the determination that
Husband contributed very little during the relevant time period claimed.
The division of a marital estate necessarily begins with the classification of the
parties’ property as either marital or separate property. McClellan v. McClellan, 873
S.W.2d 350, 351 (Tenn. Ct. App. 1993); Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct.
App. 1988). It is the burden of the spouse who seeks to show that the asset has transmuted
from separate to marital property as defined in Tennessee Code Annotated section 36-4-
121(b)(1). McCartney v. McCartney, No. M2020-00703-COA-R3-CV, 2021 WL 3578978
(Tenn. Ct. App. Aug. 13, 2021).
“Separate property” includes “all real and personal property owned by a spouse
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before marriage,” Tenn. Code Ann. § 36-4-121(b)(2)(A), and “property acquired by a
spouse at any time by gift, bequest, devise or descent.” Tenn. Code Ann. § 36-4-
121(b)(2)(D). “Marital property” includes “all real and personal property ... acquired by
either or both spouses during the course of the marriage ... ,” and “income from, and any
increase in value during the marriage, of property determined to be separate property … if
each party substantially contributed to its preservation and appreciation ....” Tenn. Code
Ann. § 36-4-121(b)(1)(A), (B). Tennessee Code Annotated section 36-4-121 provides that
“direct” and “indirect” “substantial contribution” to the appreciation of separately held
property will render the increase marital property under the statute.
In order to be substantial, contributions, either direct or indirect, must satisfy two
requirements. First, the contributions, must be “real and significant” but need not be
“monetarily commensurate to the appreciation in the separate property’s value, nor must
they relate directly to the separate property at issue.” Brown v. Brown, 913 S.W.2d 163,
167 (Tenn. Ct. App. 1994). “Second, there must be some link between the spouses’
contributions and the appreciation in the value of the separate property.” Id.
The trial court properly determined that the gifted stock in the Portera Entities is
Wife’s separate property, not marital property. The court appropriately exercised its
discretion in finding that no substantial contribution had been made by Husband to the
appreciation in value as found by Husband’s expert. The court concluded that the
appreciated value had not been transmuted and is not subject to distribution by the trial
court. The court did, however, accept Husband’s expert’s opinion that the interest had
increased in value $444,000 in three years. Wife disputes that her gifted separate property
increased $444,000 from 2014, the date of the gift, to 2017. She claims the recharacterized
loan results in non-existent money as her appreciation.
Again, after our review, we cannot identify any error in the actions of the trial court
in this matter. Under the facts before us, the trial court did not abuse its discretion in
finding the testimony of Husband’s expert more relevant than Wife’s expert to its
determination of the value of Wife’s separate property.
e. WIFE’S ATTORNEY FEES ON APPEAL
Wife requests that this court award her attorney fees incurred on appeal. In
Tennessee, “litigants are responsible for their own attorney’s fees absent a statute or
agreement between the parties providing otherwise.” Darvarmanesh v. Gharacholou, No.
M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005)
(citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)).
However, Tennessee Code Annotated section 36-5-103(c) allows a court, in its discretion,
to award attorney fees in a proceeding such as this (custody and support); see also Archer
v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). This court has discretion to award
Wife appellate attorney fees under the foregoing statute. “In considering a request for
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attorney’s fees on appeal, we consider the requesting party’s ability to pay such fees, the
requesting party’s success on appeal, whether the appeal was taken in good faith, and any
other equitable factors relevant in a given case.” In re C.W., 420 S.W.3d 13, 22 (Tenn. Ct.
App. 2013) (citing Darvarmanesh, 2005 WL 1684050, at *16). Because we have affirmed
the trial court’s judgment in favor of Wife on all issues raised, Wife is the prevailing party.
We find that Husband’s actions resulted in extensive and lengthy litigation, taken in bad
faith and for purposes of delay. Further, Husband has raised moot issues regarding Scout,
now an adult, and his argument concerning Ali has no basis in fact. We conclude that Wife
is entitled to an award of attorney fees on appeal. As such, we grant Wife’s request for
appellate attorney fees.
V. CONCLUSION
The judgment of the trial court is affirmed in all respects, and this matter is
remanded for determination of Wife’s reasonable appellate attorney fees and costs and for
such further proceedings as may be necessary and consistent with this opinion. Costs of
the appeal are assessed against the appellant, Glenn Paul Niemeyer.
_________________________________
JOHN W. MCCLARTY, JUDGE
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