*1 483 building of standards when a enforcement safety to
“conformed the construction stan- legally at the time of con-
dards effective predecessor
struction.” The to section essentially pull
31.3.4.1 had the same sta- requirements
tion alarm at the time when
Burning was Despite Tree constructed.
the fact that Tree Burning cited
then, apartment complex inwas viola-
tion of the ordinance at the time of con-
struction.
We affirm the decision trial court writ of petition dismiss certiora-
ri. against Costs of are assessed
the appellant.
Carol Ann Vick WATSON
v. WATSON,
Frank Lee Jr. Tennessee, Appeals
Court Section, at
Western Jackson. 18,
Nov. 2008 Session. 27,
May 2009.
Order Denying Petition for 6,
Rehearing Aug. 2009. to Appeal
Permission Denied 22,
Supreme Court Feb. Moreover, law, "[plublic under Tennessee Id. at 125. The kind inducement "neces agencies subject equitable sary are estoppel impose estoppel governmental on a estoppel pais agency implied to the same extent as is that which leads to an con private parties very exceptional party governmental circum- tract between and the required agency stances are relinquish to invoke the doctrine or causes the against governmental the State and its Thompson Dept. subdi- cause action.” v. Codes Admin., 654, County McReynolds, visions.” v. (Tenn.Ct.App. Bledsoe 664 S.W.3d (Tenn.1985). 1999). Townsend, S.W.2d City In cases in White No. 03A01-9410-CV-00392, estoppel applied public which has been 1995 WL *8 agencies, public body 1995), May "the (Tenn.Ct.App. took affirmative the court deter clearly private party building action that permit induced mined that the of a issuance detriment, distinguished act to his or her equitable alone was not sufficient invoke silence, acquiescence.” estoppel non-action or in that case.
This is the second in this divorce case. The husband is a lawyer and the wife was a homemaker during most marriage. trial, After the divorce estate, court divided the marital awarded the wife transitional alimony, and ordered pay each his or her own attorney’s fees. appealed The wife and the husband cross-appealed. In the first appeal, the appellate court reversed the trial court’s assets, valuation of two marital stock and a corporation, and remanded for the trial court to re-value addition, those assets. the trial court’s decision regarding the alleged husband’s dissipation of marital as- reversed, sets was and that issue was re- *5 manded the trial court for reconsidera- tion as well. The alimony issues raised on and attorney’s fees were not in addressed remand, appeal. first On the trial court found a debt owed the corpora- tion to the husband was uncollectible and determined that the value of corpora- tion was zero. The trial adjusted valuation of the wife’s interest in the stock engaged and analysis detailed of the alleged husband’s dissipation of marital as- sets, finding remand, no dissipation. On sought the wife alimony award of The trial court declined to award futuro. alimony in but awarded the wife an futuro year additional of transitional alimony. Finally, the trial court declined the wife’s request attorney’s for her fees. Both par- David E. Caywood Holly and Jackson appeal. ties now affirm We the trial Renken, Tennessee, Memphis, for court’s finding that the husband did not Plaintiff/Appellant Carol Ann Vick Watson. engage in dissipation, affirm the trial court’s property increased award to the Berry Sam Betty Campbell, Blair and wife, stock, reflecting her interest Tennessee, Memphis, for the Defen- reverse the trial finding that the Watson, dant/Appellee Frank Lee Jr. zero, value of the corporation is and re- mand to the trial court for valuation of the OPINION asset, corporation and division of that mod- KIRBY, J., HOLLY M. delivered the ify the trial court’s alimony by award of Court, opinion of the in which ALAN E. awarding the wife when HIGHERS, P.J., W.S, ends, J. and STEVEN the transitional affirm the STAFFORD, J., joined. trial court’s refusal to award the wife her $6,000 per fees, in the amount of month mony and order award
attorney’s years in- per on the wife’s first three interest post-judgment stock, from the years. award the next three Each creased month for on judgment the date or her dating pay ordered to own party was remand. appealed fees. attorney’s cross-appeal- court’s decision History and PROCEDURAL
Facts ed. the second the divorce This is trial court’s appeal, In the first valu- Ann Wat Plaintiff/Appellant Carol Vick asset, Corpora- a marital Randell ation of (“Wife”) Defendant/Appellee son reversed, tion,1 the issue re- was was (“Husband”). Watson, Jr. Frank Lee at *14. Specifically, manded. Id. fully more forth in in this case are set facts court was asked consider remand Watson, Watson v. opinion. first See our a receivable asset of Husband in value of W2004-01014-COA-R3-CV, 2005 WL No. Randell Corpo- the form of a debt owed 9, 2005). Aug. (Tenn.Ct.App. first appeal, ration to Husband. Id. complaint di- filed the initial special report noted that was At and Husband counterclaimed. vorce by the trial court appointed master below, the time of divorce Hus- Randell make a recommendation on Cor- sixty-three years old was and Wife band poration negative showed a asset value for years fifty-six old. Husband is approximately neg- Baker, with the law firm shareholder negative ative at *9. Id. Donelson, Bearman, & Berkow- Caldwell predicated Randell Corpora- value was *6 itz, earning range per indebtedness to Husband tion’s employed had been as a secu- year. Wife $419,000; approximately amount howev- twenty rities and commodities trader some er, the trial court not include the re- did earlier, years upon parties’ agree- but ceivable as an asset of Husband. This Id. quit stay ment home and care for the was found erroneous reconsideration parties’ learning-disabled par- son. The was on directed remand. marital included marital ties’ assets trial court’s valuation of another home, Vining Sparks IBG ten units of asset, Sparks IBG Vining marital stock stock, owned corporation Hus- In reversed. Id. at *14. deter- also band, Corporation. During Randell stock, value mining the net trial romantically marriage, Husband became consequences court the tax of a deducted firm; in his paralegal involved with law stock, despite sale of the Husband’s testi- expenditures asserted that Husband’s Wife he did intend to mony that sell the relationship dissipa- related to this were a money stock would instead borrow the but tion of marital assets. for her in it. pay Wife interest Id. trial, After the the trial court filed its *10. fact findings of and conclusions of law on 17, 2004, relating The trial court’s decision entered final February alleged dissipation Husband’s marital decree of divorce on March 2004. The court, alia, on inter divided the marital was reversed well. trial, and awarded transitional ali- at *14. After divorce Id. estate acreage Mississippi. is a trad- commodities substantial ing operating entity and cattle ranch located stock, any dissipation court determined that adjusted the trial court its valu- marital assets Husband would not be ation of one-half of the stock from a net considered distribution of the mari- value of This new estate, noting during peri- tal the time value included the od in which allegedly dissipated court had previously deducted as a tax funds, marital he provided monies to Wife consequence selling one-half of the units that exceeded the amount allegedly dissi- of stock.
pated. at *12. appellate Id. remand, On the trial court engaged also interpreted indicating this as that the dis- in a careful analysis Ward of Husband’s sipated marital funds would not be consid- alleged dissipation of marital assets. because of pro- ered the monies Husband light of its analysis, detailed the trial court during separation. vided to Wife This determined that Wife failed to establish a erroneous, reasoning was found to be prima facie dissipation, case of so the bur- the issue was for the trial remanded den never shifted to Husband to show that analyze alleged dissipation Husband’s the expenditures at issue were appropri- opinion accordance with this Court’s ate. The trial court noted that even if Ward, Ward No. W2001-01078-COA- Wife had a prima established facie R3-CV, 2002 (Tenn.Ct.App. WL 31845229 expenditures would not constitute dis- 2002). Watson, Dec. 2005 WL sipation under analysis. the Ward In the at *14. Finally, because the case had been alternative, that, the trial court found even remanded for reconsideration of issues af- if the expenditures constituted dissipation, fecting the distribution marital proper- this would not change its distribution of ty, appellate court declined to address the marital estate. relating issues to the alimony award to remand, proceedings Wife or the trial court’s refusal to award sought an award of alimony in in- her attorney’s fees. Id. stead of alimony, noting transitional Hus- 6, 2007, On November the trial court band’s substantial earnings and the fact entered its findings and order on remand. largely that she had been out of the work- *7 $419,000 recognized trial court force twenty years. for The trial court did loan to Randell as a receivable of Hus- not award futuro, in but awarded band, but determined Randell was an year additional of transitional ali- $419,000 pay unable to Husband the it mony per amount of month. owed him. It selling found that Randell’s The trial court declined to previ- revise its satisfy assets to its indebtedness to Hus- ous denying order Wife an award attor- band would cost more than in ney’s timely fees. Wife then filed a notice taxes, costs, closing and real estate broker- to this Court. age that, fees. This meant upon liqui- dation, Randell would have negative a val- Appeal Issues on and Standard of Review ue, and there money would be no pay On appeal, Wife raises the following is- light Husband. finding, the trial 2 sues: court reaffirmed its prior determination
that the value of Randell was zero and that 1. Whether the trial court in erred Randell was unable to pay Husband the finding that Husband did not in engage $419,000 debt. to the Vining Sparks As dissipation parties’ of the assets.
2. Wife also reassigned authority asks that this case be proposition. cites no for this We jurist to another respectfully request. remand. she decline this Analysis trial court in con- erred
2.Whether firming prior its determination Dissipation Randell is zero that Randell value of argu We first address Wife’s the debt to Hus- owed pay unable in ment the trial court erred conclud band. engage did in dissi ing that Husband in erred Whether 3. The factors for pation of marital assets. marital property. distribution its equitably a court to consider when divid con ing “[t]he the marital estate include trial court erred Whether the 4. acquisition, to the tribution of each and duration of amount preservation, appreciation, depreciation or to Wife. awarded separate the marital or dissipation of trial court erred in Whether the (c)(5) (2005) property.” T.C.A. 36-4-121 attorney’s fees and failing award added). “dissipation” (emphasis term expenses Wife. in the statute. Black’s Law defined use of an Dictionary defines as “[t]he trial court 6. Whether the erred illegal inequitable purpose, asset an for post-judgment inter- failing award community prop such use of spouse’s on the the value of est modification erty personal benefit when divorce is for IBG stock Vining Sparks awarded imminent.” to Wife. Black’s DICTIONARY Law (7th 1999). The case ed. Ward outlined also two our raises issues for analysis allegations the appropriate consider whether review. He asks us to dissipation: awarding the trial court erred distinguish Trial courts must between her interest additional expenditures what marital are wasteful Sparks IBG stock and whether the Vining may self-serving and those which awarding trial court Wife seven erred but not so far removed from ill-advised alimony. years of transitional occurring previ- expenditures “normal” relationship within the marital ously case was Because this tried them render destructive. sitting jury, trial court without we findings determining dissipation review the trial court’s of fact de whether occurred, upon presumption with a we find trial courts should con- novo record correctness, (1) following: whether the evi- prepon unless evidence sider 13(d); R.App. presented supports derates Tenn. P. dence otherwise. (Tenn. expendi- Bogan Bogan, alleged purpose the various *8 2001). (2) so, tures, alleged Some factual and if whether the of the court’s are to under findings purpose equates dissipation based on its determinations of the credibility prong the the witnesses. This circumstances. first an of test, objective satisfy affords deference” the trial test. To this the “great Court forward ev- credibility dissipating spouse bring Keaton can determinations. Educ., idence, vouchers, receipts, as County v. Hancock Bd. 119 such (cita 218, claims, (Tenn.Ct.App.2003) S.W.3d or other similar evidence that 223 omitted). law, however, support purpose the Questions independently tion as prong requires are reviewed de with no The second the presumption alleged. novo Constructors, determina- equitable of correctness. Inc. v. court to make S. Educ., County upon Loudon Bd. tion based number factors. omitted). (1) (Tenn.2001) (citations 706, typicality factors include: the Those (2) expenditure marriage; pated of the this the that Wife alleges. the expenditure, the benefactor of name- spend Husband testified at trial that he ly, primarily whether it benefitted the approximately on Ms. Anderson. marriage the primarily or benefitted In appeal, the first the of dissipa- issue (3) spouse; sole dissipating proximi- tion was remanded to the court for ty expenditure of the to the breakdown reconsideration appeared because it (4) of the marital relationship; the final that order divorce the trial expenditure. amount of the court had refused to consider the issue of Ward, 31845229, (internal 2002 WL at *3 order, dissipation. original its the trial omitted). spouse A citations who seeks court concluded that dissipation by must do so prove prepon [a]ny marital funds which [Husband] of the See v. derance evidence. Robinson may expended have on behalf for or Robinson, No. W2003-01836-COA-R3- paramour, Anderson, his Ms. Houston (Tenn.Ct. CV, 2005 WL at *16 will not be this by considered court as 9, 2005). App. May by Earlier decisions any having bearing on the dis- this Court discuss allocation of tribution, during peri- because the same proof dissipation burden of where is al od, received from [Wife] [Husband] leged: funds, greatly expendi- excess of said persuasion burden of and the initial ture, which she used for her own benefit production dissipa- burden of showing accounting without [Husband] party making allega- tion is on the same. tion, party and that throughout retains persuading burden of that remand, On clarified its funds dissipated, have been but after alleged dissipa- earlier conclusion on the party that a prima establishes facie case tion, engaged in a detailed Ward anal- that moneys have been dissipated, ysis expenditures. of Husband’s Little burden shifts to the spent who given to weight evidence submitted money produce evidence sufficient form Wife of the Rule 10063 sum- show that expenditures appro- were In- expenditures. maries Husband’s priate. deed, acknowledged that her sum- Wiltse, No. Wiltse W2002-03132-COA- included maries inaccuracies that R3-CV, (Tenn. 2004 WL at *4-5 seventy-five percent alleged some 2004) Ct.App. Aug. (citing 24 Am.Jur. dissipation expenditures listed were (1998)).
2D Divorce and Separation did not know “miscellaneous” because Wife argues purchased paid Husband what was Therefore, dissipated approximately expenditures. in mari- the trial court by spending tal assets money satisfy on himself concluded Wife had failed (“Ms. paramour analysis, Houston Anderson of the prong first Ward Anderson”). is, The record present support includes evidence failed to evidence to that Husband for the paid couple’s alleged purpose expenditures, meals *9 restaurants, never paid consequently at vacations with Ms. that the burden shifted Anderson, gifts and Hus- to bought appropriateness her. to Husband show the Ward, spent admitted he expenditures. band that some monies the See WL Anderson, Ms. but denied that he dissi- at *3. Tenn. R. Evid. 1006. conclusion, that the observed dissipation the trial and reaching this After that, spent if he on Ms. even Husband testified conclude that went on to court pat- of the small relation the prong the first Anderson was had satisfied Wife at marriage. issue After expenditures the in this analysis, spending tern of Ward factors, under the dissipation constitute the trial reviewing did not all of the Ward analysis. The of the Ward prong expendi- second concluded that Husband’s court all four of the factors considered trial court dissipation. not constitute tures did the prong second enumerated the findings challenges the trial court’s Wife id. The trial court analysis. See Ward dissipation issue. on remand relative the factor, “typicality” that first addressed argues expenditures that Husband’s She is, typical to was expenditure whether not benefit typical, not that she did were See After not- parties’ marriage. id. expendi- that expenditures, from the spend- had admitted to ing that Husband couple at times when the tures occurred $25,000 on Ms. ing approximately trouble, having and that the marital was Anderson, that the trial observed substantial, amounting dissipation was money spent on similar trav- Husband had approximately prior separation and el meals were for a many expenditures that of the finding that did Husband personal pur- and business combination assets, of marital engage dissipation this, light the trial court poses. the standard set forth applied trial court expenditures that were dis- concluded previous de in accordance with our Ward cretionary spending typical of the was Watson, 1882413, at cision. See 2005 WL marriage. parties’ apparently The trial court credited *13. then trial court addressed testimony this Husband’s issue factor, looking whether the “benefactor” at gave Rule sum weight little Wife’s expenditure primarily benefitted mar- fac Explicitly applying maries. Ward riage alleged dissipating spouse. tors, that Hus court determined See The trial court determined that id. discretionary expenditures were band’s indirectly Wife benefitted from Husband’s carefully spending, dissipation. After them expenditures because much of were reviewing appeal, giving the record on personal for a combination business the trial court’s appropriate deference to purposes, enabling thus to pro- Husband credibility, the parties’ determinations on temporary support vide while the “the supports find that the evidence we parties separated. were credibility de trial court’s fact and driven the prox- trial court next looked at dissipation on the issue.” Lane cision imity expenditure to of the the breakdown M2000-01135-COA-R3-CV, Lane, No. relationship. of the marital See id. The (Tenn.Ct.App. *3 2001 WL at majority court found that the 2001) (citation omitted). This Nov. expenditures marriage occurred after based on the trial court’s conclusion is broken, irretrievably concluding factors, not the application of the Ward weighed against this factor Ward also find- provided support fact ing dissipation. allegedly of the amounts excess Watson, See 2005 WL Finally, dissipated. discussed basis, 1882413, at On affirm expenditures “amount” of *13. we issue. finding that Husband’s See id. The trial court reiterated that it the trial court’s gave weight dissipation. did not constitute expenditures little Wife’s evidence *10 ter stated that the loan
Stock should not be recognized corporate liability as a in cal- argues culating the value of the Corpo- Randell awarding the trial court erred in ration. additional for her interest *11 (b) worthless, prior appeal value Randell stated in the “the the and recognized corpo- zero. be loan should not as Corporation liability calculating rate the value of the testimony from undisputed the Based on See id. Corporation.” Randell re- Special Master both liquidating Randell’s the cost of garding corporation re Had Randell been assets, of the evidence preponderance quired Husband the debt it pay to trial that Ran- supports finding him, Special owed to Master found that pay is to its debt to Husband. unable dell negative be Randell’s value would Thus, conclusion that “the the trial court’s $119,000. required not If Randell will be Receiv- to the marital estate value debt, pay to amount of is able was zero” well-founded. must into liability be added back at the the trial court found corporation, Randell a giving value of the time that “the value of Randell is same $300,000.4 valuation of some positive asset trial, At problem. zero.” Therein lies the Thus, from Husband’s receivable while Lynn Special Master Evans testified that may worthless, Randell be to Husband had to be treat- Randell’s debt not, Corporation itself way personal ed the on Husband’s same asset, would be considered an awarded to Corporation’s and Randell balance sheet division, property Husband in the with a balance sheet: approximately value of The manner to handle appropriate [Ran- light findings, of these we Corporation’s dell debt to Husband] argument now consider Wife’s on way would to treat it the same be as up both of books. If it’s that the trial court erred sets set its distribution it liability corporation, property. then would of the marital The division per- be appropriate be for it to gov marital property in divorce cases is personal, sonal. If it’s left off the it § erned by Tennessee Code Annotated 36- corporation. off the should also left 4-121, generally provides which that the equita to the property court is divide Here, properly found that bly regard without to fault.5 The trial simply to pay Randell was unable its debt court has substantial discretion when di This in effect removed the Husband. viding property, the marital and its distri receivable Husband’s list assets. consistent, given if expected “great weight” To be Randell is bution will be Husband, then, Sullivan, appeal.6 as pay its debt we See Sullivan gard proportions appellate 4. The does include marital record evi- fault just. consequences dence the tax Randell Cor- court deems (2005). (a)(1) poration having § T.C.A. its debt Hus- 36—4—121 “forgiven.” band in effect estate, equitably dividing the 6.In marital trial court is to consider "all relevant fac- 36-4-121(a)(1) 5. Tennessee Code Annotated tors,” including following: part pertinent reads in as follows: (1) marriage; The duration of the (2) health, separa- age, legal physical or all actions for divorce mental tion, skills, earning having jurisdiction employability, the court vocational ca- thereof estate, may, request party, prior upon pacity, of either financial and finan- liabilities any parties; cial determination as to whether needs of each of the (3) intangible appropriate support tangible to order the and main- contribution other, education, (1) (1) equi- party training tenance of one to the one divide, tably assign earning power distribute or the marital or increased of the other parties party; between the without re-
495 507, (Tenn.Ct.App.2002) (citing 512 investment accounts her name (approxi- S.W.3d 289, $2,075) Goodman, mately v. S.W.3d 298 and all policies 8 insurance on Goodman appellate $10,000). life (Tenn.Ct.App.1999)). (approximately An court is her She also vehicle, her to disturb the court’s de received valued at “disinclined $500.8 all, proper unless the distribution lacks the value of cision Wife’s share of the marital evidentiary support $343,925.9 or results from some property approximately totaled liabilities, misapplication statutory of law or As to error Wife ordered to pay name, requirements procedures.” outstanding and Martin v. all debt her own Martin, $21,130 155 S.W.3d which totaled approximately and 129 (Tenn.Ct.App.2004) Herrera, (quoting parties’ $15,000 v. 944 approximately Herrera debt to (Tenn.Ct.App.1996)). mother, 389 The Margaret S.W.2d Wife’s Vick. After con- Wife, sidering of the marital estate is not re division debt allocated to her net equal equitable. to be to be quired order share the marital estate approxi- totaled Kinard, $307,795. mately See Kinard (citations omitted). (Tenn.Ct.App.1998) The trial court awarded Husband the goods the terms of the court’s or- household furnishings Under and in his der, equity apartment, was awarded all of the at approximately valued $120,000. $40,000, up plus painting the marital residence She at approxi- valued $10,000. goods mately received almost all of the household He also received all residence, title, furnishings rights, and in the marital interest and $100,000.7 at approximately valued deemed have zero value. half of the cash of the Vining Sparks received net surrender Husband received all stock, lien, $51,500 on policies subject value insurance Hus- IBG to Wife’s $20,850), life (approximately representing band’s half of half of net value of the (k) retirement the value Husband’s Husband received all of his stock. stock Donelson, with the Baker Donelson law firm Baker at approximately account valued 401(k) $49,000) $51,500 $22,000, (approximately and his entire retirement ac- Donelson, Vining Sparks her net interest in the with Baker subject count She all bank (representing stock. also received lien half of Wife’s asset, (4) party ability The relative of each seeable sale of the other reason- acquisitions capital future come; assets and in- ably expenses foreseeable associated with asset; (5) party The contribution each to the (10) security The social amount of benefits acquisition, preservation, appreciation, de- spouse; available to each dissipation preciation or of the marital or (11) necessary Such other factors as are including separate property, the contribu- equities parties. consider the between the party marriage of a tion to the as home- (2005). 36-4-121(c) T.C.A. maker, wage parent, with earner or party of a contribution homemaker or original 7. received Farnsworth wage given weight earner to be the same if painting approximately valued at role; party each has fulfilled its (6) separate property The value of the vehicle, This is the net value of the 8. consider- party; each ing remaining on the debt automobile (7) party estate of each the time of loan. marriage; (8) The economic circumstances of each award half of the net cash at the time the division of policies surrender values of the insurance effective; become Husband's life was in solido. (9) consequences party, The tax to each reasonably costs associated with the fore- (k) account), and half to Husband. parties, and all half to Wife of the 401 the value life, record does not include evi- subject policies the insurance dence on the tax lien, consequences other representing half of Wife’s ramifications, to both Husband Ran- value. Husband the net cash surrender *13 dell, deeming him and of Randell’s indebtedness to by driven the vehicles received we must re- Husband uncollectible.12 So son, approximately at a total of valued his mand this issue to the trial court. guns With $2,000,10 sporting of his and all modification, the trial court’s distribu- at this approximately equipment, valued property tion of the marital is affirmed as $11,165. also received all bank Husband name, modified. accounts in his val- investment $2,272. all, In Hus- approximately ued Alimony property the marital to- share of band’s $208,787. Husband approximately assertion that taled We now address Wife’s outstanding all debts pay awarding ordered to in was erred her court debt, name, including in credit card In alimony complaint in her for futuro. $62,589, divorce, approximately “alimony,” as sought which totaled without Wife trial, totaling well as two loans At type business-related a amount. specifying $286,000. alimony was also ordered to Husband transitional for Wife asked for $7,185. special master’s fee of pay years. The twelve trial awarded indicates that he was Husband’s affidavit for a total of alimony Wife transitional six in 2003 income taxes responsible years for a month three years, for $40,000. This years. amounted a amount a for the three month next $395,774.11 approximately total debt of appeal, sought first Wife transition- Using the trial court’s valuation of Randell years. al ten alimony for issue of allocation Corporation, Husband’s net alimony in this addressed Court’s negative would marital be property opinion in the first because issues affecting distribution were court, remanded to the with issues above, noted we have deter- alimony to surrounding be reconsidered in that, light in the fact that Ran- mined the context of mari- altered division $419,000 indebtedness to Husband dell’s property. tal considered, essence, in forgiven, must be positive court, would have a On remand to the trial in light of the trial court’s divi- sought alimony valuation. futuro. futuro, in marital prop- alimony
sion of the remainder did not award but the net value of Randell erty, year we find that instead awarded additional tran- alimony. be divided between the sitional Wife now asks this Corporation should value, Again, represents consequences selling the net con- 12.As with the tax outstanding stock, sidering any Vining automobile loans. Sparks the trial court should Corpo- consider on remand whether Randell debt 11. The distribution marital includ- ration's debt to Husband will in fact not be separately listed ed other loans not because Randell, paid (forgiven standpoint from the they arriving in were considered at a net standpoint), written from Husband’s off They value of assets. include other consequences any resulting or other tax rami- $307,000 loan from First Tennessee Bank se- fications Randell and Husband. stock, Vining Sparks cured guar- loan to Randell that Husband anteed, loans, and various other in- smaller cluding loans. automobile award her Court to Wife had issue of alimony waived $6,000per futuro, and we have found none. Under the amount of month. circumstances, these we must find that argues judi Wife is Husband has waived the judicial issues of cially estopped seeking alimony estoppel and waiver as to request Wife’s futuro, at trial because she asked for tran See Tenn. R.App. futuro. alimony. sitional “Pursuant to the doc 36(a). P. judicial estoppel, trine of a party will not permitted to take a position that Having determined that the is contrary directly to or inconsistent with a properly Court, sue is before this we now *14 position previously taken the party address argument Wife’s where the party chargeable had or was court in declining erred to award her ali with full knowledge of the facts and where mony “Trial courts have broad futuro. prejudice conduct would another.” discretion to determine whether spousal Alvares, Guzman v. 375, 205 S.W.3d 382 and, support so, is needed if the appropri Marcus, (Tenn.2006) (citing Marcus v. 993 type amount, ate of alimony, and dura (Tenn.1999)). 596, S.W.2d 602 Neamtu, tion.” Neamtu v. No. M2008- 00160-COA-R3-CV, 152540, 2009 WL at argues Husband also that Wife 2009) 21, *5 (Tenn.Ct.App. Jan. (citing in futuro has of alimony waived issue Wynns v. Wynns, No. M2007-00740-COA- because she failed to raise this issue at R3-CV, 4415786, (Tenn.Ct. 2008 WL *2 at trial or in the appeal. appellate first The 2008)). 26, App. Sept. Appellate courts may treat issues that are not raised are, therefore, reluctant to guess second waived. See Tenn. on being as trial court’s regarding decision alimony 13(b); Bing Baptist v. Mem’l R.App. P. supported by “unless is not the evidence Hosp.-Union City, 937 S.W.2d 922, 924 or contrary public to the policy embod (Tenn.Ct.App.1996). Issues that are not statutes.” Brown v. applicable ied may raised the trial court also be Brown, 163, 913 S.W.2d 169 (Tenn.Ct.App. deemed waived. See Tenn. R.App. P. 1994) (citations omitted). Armentrout, 36(a); Alexander v. 24 (Tenn.2000). 267, 272 S.W.3d Tennessee Code Annotated (i) points place § to no 36-5-121 outlines factors to be record in which he argued to the trial determining considered in whether judicially and, so, Wife was estopped award alimony type if and seeking alimony from or that amount.13 The two important most factors (4) 13. Those age factors include: The and mental condition of each (1) party; earning capacity, The relative obli- (5) needs, gations, physical party, The condition of each and financial resources of to, including, party, including physical each but not limited pension, income dis- from profit ability incapacity sharing plans due to a chronic or retirement and all debili- sources; disease; tating other (2) (6) The relative The extent to which it training education and would be undesir- party, ability each opportunity party employment and able for a to seek outside home, party each to secure party such education and because such will be custo- training, necessity marriage; dian of minor child of the (7) training secure further separate party, education and assets of each both improve party’s earnings capacity such personal, tangible intangible; to a real and level; (8) reasonable provisions regard made with to the (3) 36-4-121; marriage; The duration of the property, § marital as defined 498 long ties licenses have since disadvantaged spouse trading need of the
are the ability job her a securities obligor spouse’s pay. lapsed. quit Avaritt, stay broker to home and No. M2007-01804- commodities v. Avaritt COA-R3-CV, 4072087, *2 son. parties’ learning care for the disabled 2008 WL 2008) on fur- (citing This Husband to focus (Tenn.Ct.App. Aug. permitted Oakes (Tenn.Ct. Oakes, family career. choice is thering This S.W.3d v. legislature. Although appropri explicitly supported fault is App.2007)). consider, provides not The as follows: factor statute ate punitive. See T.C.A. 36-5- meant to Spouses traditionally strengthened have 121(i)(11) Tait, (2005); Tait family through private arrange- unit (citations (Tenn.Ct.App.2006) (1) one focuses whereby spouse ments omitted). personal nurturing side including the care and nurtur- marriage, Husband, Here, sixty-three age at the children, the other ing of the while trial, with the time of is a shareholder spouse building the primarily focuses firm, earnings with Baker Donelson law family unit. strength economic years the firm for the 2001-2003 of *15 in eco- arrangement This often results $296,000, $287,000, and approximately who sub- spouse nomic detriment the trial, $303,000,respectively. At Husband’s spouse’s personal ordinated such own February 2004 affidavit stated that his marriage. career for benefit of Baker most recent draw from Donelson It public policy is the of this state was approximately per that time support marriage, and and to encourage month, year with a end potential distribu- encourage family arrangements $54,000. up average tion of The month- provide healthy of and rearing Vining Sparks ly distribution from productive children who will become awarded from stock varied productive citizens of our healthy and trial court zero to The found that state. health good Husband was in that his and “averages
total overall income between 5—121(c)(1)(2005). § T.C.A. 36— $350,000-$400,000 in yearly gross income Here, the trial court an award ordered firm, his law trading commodities alimony. transitional Codified and company Vining Sparks IBG Secu- alimony paid transitional is a certain sum Company.” rities a period “for time.” T.C.A. determinate (2005). contrast, § last worked full time “awarded (g)(1) 36—5—121 It is twenty years ago over as a securities and when the court finds that rehabilitation is earning seventy- necessary, economically commodities over but the disad- trader percent adjust five vantaged spouse of her commissions from needs assistance to that she a consequences trades made on behalf Husband the economic di- Id.; § or Randell. and vorce.” also 36-5- Her securities commodi- see T.C.A. (9) (11) living parties parties, The fault standard of The relative discretion, marriage; court, during established (10) cases where in its party so; each extent to which has appropriate to and deems it do tangible intangible made such and contri- factors, (12) including the tax Such other marriage monetary butions to party, each neces- consequences to as are contributions, tangible homemaker sary equities between the to consider intangible by party contributions a to the parties. education, training earning or increased (i) (2005). § T.C.A. 36—5—121 power party; of the other 121(d)(4) (2005). secure, An approach award of transitional she will never a level of alimony generally earnings remotely comparable non-modifiable. is See to Husband. (2005). (g)(2) § T.C.A. 36-5-121 statutes define rehabilita- tion as attaining earning capacity that contrast, alimony is paid futuro permits economically disadvantaged basis, long generally a term “until death or spouse living standard that is “reason- § remarriage recipient.” T.G.A. 36- ably comparable to the of living standard (2005). 121(f)(1) paid It is to an also 5— enjoyed during marriage.” T.C.A. economically disadvantaged when spouse 5—121(f)(1)(2005). § It is clear that 36— feasible,” rehabilitation “is not defined in Wife, by the standard is not attainable “meaning statute as that the disadvan- probably indeed by attainable Hus- achieve, taged spouse is unable to with band. While Husband is a law- respected effort, capacity an earning reasonable yer impressive and businessman with spouse’s will permit the standard of living earnings, the parties’ lifestyle during the after reasonably compa- the divorce be marriage simply did not reflect the truth living enjoyed rable to the standard of of their financial circumstances. The during marriage, post-divorce to the that the proof by indicates assets owned living expected standard of available flow, Husband were but supported cash spouse.” to the other Id. An award of leveraged were amount crippling subject to modification debt, a facade creating of affluence. It “upon showing of substantial and materi- appears from the record that neither al change in circumstances.” T.C.A. 36- will be maintain able to a standard of (f)(2)(A)(2005). 5—121 *16 living after the that “reasonably divorce decree, In the divorce trial the comparable living to the standard of en- Wife, fifty-six years found that old the joyed during marriage.” the health, trial, good time of was in was a statutory alternate definition of re- high graduate previous school “with train- habilitation that economically means the ing marketing in trading securities and/or disadvantaged spouse earning attains an activities.” It noted that had been she capacity that permits living standard homemaker she since when ceased “reasonably ... comparable that to the the working outside home to care for the post-divorce living expected standard parties’ son. The trial court made no find- spouse.” be available to other Id. ings regarding potential Wife’s for rehabil- record, it From the is unclear what Hus- earning itation or her capacity. post-divorce living will band’s standard of testimony, In her proof Wife indicated that be. Much of the al- Husband’s she pass leged dissipation believed that she could the re- focused on ex- Husband’s quired tests to renew her in licenses secu- involved extra-martial penditures that his travel, trading, rities and but relationship, housing commodities was such as hampered sponsor clothing because an enter- employer expenses, restaurants and tests, necessary was for her expenditures to take tainment. While such would finding and she had had no in in the appear extravagant success one. face of enor- testimony From appears carrying that Wife debt is mous load that Husband was time, able to work in some capacity, though during it is this the trial court found that unclear whether the work would be in was a contin- spending pattern simply this trading. securities It spending commodities uation of the which Husband and/or i.e., is clear engaged throughout marriage, that whatever work is able to had Wife marriage. specifically The trial court found parties’ to the “typical” was support needs and that Husband finding. out this that Wife The record bears supports and the pay, is able to record alimony, considering context of re findings. We note that Wife those “post-divorce” then Husband’s we consider prop ceived the lion’s share of marital will be living whether standard necessi erty. purchasing after living that is to attain standard able home, remaining a new her ties such as comparable, given the alloca- reasonably marital will be insufficient to sus her of the marital estate to her and tion alimony her runs tain once transitional reviewing earnings. expected level out, and, Husband, make like Wife must expenditures par- during Husband’s her provisions for eventual retirement. separation, trial court commented ties’ record, Therefore, find that from the we have could not maintained that “Husband support will have a continued need of lifestyle at the level professional same beyond alimony so the transitional awarded expenditures,” going even without these expenditures bene- court. far as find fitted Wife. It is unclear whether the trial application Based of the factors indicating court was Husband should 5—121(i) enumerated Section 36— expected be to continue maintain such facts of we must conclude that lifestyle, expensive an even the face of alimony award of Wife is entitled which, at of the mountainous debt the end of the upon termination transitional futuro day, paid. must Therefore, alimony. modify we impacts This also our evaluation of issue court’s award to include an award ability to pay alimony Husband’s in futuro amount Wife, important one of the two most $1,500 per upon month termination em- rightly factors. Counsel alimony award.14 transitional phasizes the amount of indebtedness to Husband in the trial allocated Attorney’s Fees property. marital division *17 We next address whether indeed, daunting debt is but the trial court refusing in to trial court erred award Wife Husband; could have it only allocated to her fees. A trial deci attorney’s party incur the only he chose to it and is regarding attorney’s sion an award of fees any repaying top with it. hope On under is reviewed an abuse of discretion debt, paying expected off the is Husband standard, if the only and will be reversed in to retain the facade of affluence v. court abused its discretion. Owens name of life- maintaining “professional” a Owens, 478, (Tenn.Ct.App. 496 Wife, 241 S.W.3d style? Meanwhile having been out 2007) Aaron, Aaron v. S.W.2d (citing to 909 twenty years workforce for over son, 408, (Tenn.1995); Eldridge ill- v. El parties’ raise the finds herself 411 1, 25 equipped any dridge, (Tenn.Ct.App. an en- 137 S.W.3d work other than 2002)). try-level trial court abuses discretion job. A its argues persuasively generally supports 14. In Husband is non-modifiable brief. alimony that Tennessee transitional under premise it was intended to be short-term. 36-5-121(d)(4) §§ Code Annotated and 36-5- alimony light of our award in 121(g)(1)was intended to be of duration of a the end of the trial court's award of at futuro less, years history citing legislative two or alimony in this we need not transitional on H.B. 1480 and S.B. 622 in 2003. As noted argument. Husband's address Husband, alimony the fact that transitional
501 “its is not ous supported property. when decision share of the marital Her evidence, applies legal incorrect when it an net allocation prior any division of the standard, a when reaches decision [or] value over totals against logic reasoning is which $300,000. Moreover, upon termination an injustice complain to the party causes alimony, Wife’s transitional she will receive Brown, Id. Biscan 160 ing.” (citing v. in the amount of 462, (Tenn.2005)). S.W.3d 468 per month. Based on a consideration of factors, the statutory we find no error attorney’s An award of fees the trial court’s refusal order an usually takes the form of award pay attorney’s to Wife’s fees. Yount, v. 91 solido. Yount 777, (citing (Tenn.Ct.App.2002) S.W.3d 783 (Tenn.Ct. Post-Judgment Interest v. 593
Storey
Storey, 835 S.W.2d
App.1992)). “Accordingly, a trial court
Finally, we address whether the
considering
attorney’s
fees
request
trial court erred in
failing
post-
award
must consider the
contained
factors
judgment
on the
interest
additional
§
[Tennessee
Annotated]
Code
36-5-
$13,000 awarded to Wife
result of
(i),
121
the most important
with
factors be
Vining
modified valuation of the
Sparks
economically
ing the need of the
disadvan
stock.
provides
The statute
spouse
taged
ability
obligor
and the
shall be computed
every
“[i]nterest
Owens,
spouse
pay.”
241 S.W.3d
judgment
day
jury
from the
which
(citing Eldridge,
495-96
137
at 24-
S.W.3d
court, sitting
or the
re
jury,
without
Miller,
25;
v.
Miller
775
regard
turned
verdict without
to a
(Tenn.Ct.App.2001)).
“It
is considered
for a
motion
new trial.” T.C.A.
47-14-
most
where the final decree of
appropriate
(2001).
122
post-judgment
The award of
provide
does
the obligee
divorce
mandatory
interest
trial court
funds,
spouse with a
such as
source
may not refuse to make
such
award.
solido,
alimony in
division or
Turner,
v.
Vooys
322
S.W.3d
with
his or her
pay
attorney.”
which
(citations omitted).
(Tenn.Ct.App.2001)
Yount,
(citing
Houghland
S.W.3d at
(Tenn.Ct.
Houghland,
v.
As
the
modify
judgment
Id. at *1. In
the
of
the
time.
did not
appeal for
second
this Court
Rather,
determined
this Court
the
appeal,
the first
trial court.
remanded
the
of
had undervalued one
trial court
for a
that the
to the trial court
reconsideration
case
assets, and
the case
remanded
the marital
estate
the
of the marital
of
distribution
of
for
redetermination
trial court
the
the marital
determining that one of
after
Id.
of marital assets.”
apportionment
Watson,
“the
was undervalued.
See
assets
remand, the trial court deter
at
On
*4.
1882413,
at *10. Because
2005 WL
entitled to an
that
the wife was
mined
the
to allow the trial
Court remanded
case
$12,500. Id. at *1. In
of
additional award
regarding
own decision
court to make its
argued
the
that
the
wife
appeal,
second
distribution,
the judgment
the date of
the
post-judg
an award of
she
entitled to
remand,
original
the
on
date
original
the
interest
the date of
ment
from
decree,
the
on which the
divorce
date
support
at *4. In
decree.
Id.
divorce
the verdict” for
trial court “returned
Wade,
v.
her
she relied on Wade
position,
See
of Section 47-14-122.
purposes
In
(Tenn.Ct.App.1994);
before the trial the special master made it clear that the owed debt ORDER DENYING PETITION Appellee should be on consistently handled FOR REHEARING the financial both statements of Randell 9, 2009, Appellee On June Frank Lee Corporation Appellee, and the such that if Watson, Jr. timely petition filed a for re- Corporation’s debt was styled hearing pursuant above case not included as an asset the Appellee, Ap- to Rule 39 of the Tennessee Rules of then it should liability not be treated as a pellate Procedure. On June Corporation. findings, of Randell In its direction, Ann Appellant Court’s Carol special court noted the master’s a response Appel- Vick filed to the Watson negative valuation of Randell petition. Although denying lee’s arewe rehear, Corporation petition necessary special we find it listed in the master’s report, address one of issues raised in the and found that the value Randell petition. Corporation as a marital zero. asset was However, contrary to special master’s petition, the Appellee argues that proviso, the trial court did not concomi finding spe- there was concurrent tantly to the Appellee allocate a receivable cial master and the trial court as to the $419,0000. in the amount of Under these such, Corporation, value of Randell and as circumstances, we conclude that there was binding valuation is this Court. finding no concurrent on the issue of the Specifically, Appellee argues that the Corporation valuation of Randell that was special court and the master made a con- binding appellate court. current finding that the value of Randell $119,000, Corporation negative petition rehearing is denied. IT authority this Court does not have the IS SO ORDERED. modify value Randell recognize We that when the chan
cery special court and a master make a fact, finding finding
concurrent
binding appellate sup on the if it is
ported by any material evidence. See (2000);
T.C.A. 27-1-113 see also Aus Kramer,
senberg
(Tenn.Ct.App.1996). under
facts of this there has been no such finding.
concurrent notes Vining Sparks Watson, IBG stock. Husband *9. WL at On re- any that if were to receive shares mand, the trial court found: stock, Sparks the she be Vining would 4. The evidence established that Re- required Vining sell them to Mr. back corporation’s ceivable debt [the and Mr. the the Sparks under terms of not paid by could be Ran- Husband] agreement; in this tax partnership liq- dell even with the [H]usband result, trial making liabilities would the uidation of all Randell’s assets Wife, original court’s award of including the land that is Randell’s consequences, tax reflecting proper. the main asset. case, however, In this the trial did court 5. and the Special Master [Husband] be order that stock transferred testified liquidation cost of Rather, the Wife. trial court awarded Hus $300,000.... ... would exceed Thus band the ten units of stock and awarded upon liquidation, Randell would have Wife half of net value the stock. negative value in excess of Because Husband testified he did thus pay could not intend to sell stock and the trial court Receivable. sold, did not that it order we affirm
Notes
[*]
[*]
[*] decision id. on this issue. See 7. upon Based the evidence *9-10. before the Court, that, it was tak- determined Corporation ing negative into account $119,111.00 Randell, value of no next whether We address the trial funds would remain to pay Re- prior court its confirming erred deter ceivable after deduction of the costs mination un that Randell and, thus, selling Randell’s Husband, assets able pay debt it owes to the value to the marital estate Corpora that the value of the Randell Receivable zero. tion is zero. trial court’s valuation question marital asset is a of fact Based on this Court’s review of the presumption entitled to a of correctness. undisputed testimony, this Court Watters, Watters v. ... prior reconfirms its determina- (citation omitted). (Tenn.Ct.App.1997) tion that the value of Randell is zero pay any and Randell is unable to appeal, the first we noted that [Husband], money to [t]he amount of this loan at the time of $419,481.23, Thus, that, trial was and the special court found in order to Husband, testimony report pay master’s states its debt to Randell would - that, if adopt liquidate should have to its assets. if $119,111.00 assets, liquidated the Randell Randell its the costs [valuation] Corporation, recognize liquidation. must also a would consume the proceeds corresponding pay asset to Hus- debt to receivable This left Randell unable by liquidation band this amount. If the trial court Husband or otherwise. this, recognize did not the loan as a receiv- From determined that (a) Husband, special able mas- asset Husband’s receivable from Randell was