Session Date: October 23, 2014
Direct Appeal from the Circuit Court for Coffee County No. 3560-D L. Craig Johnson, Judge
William Andrew Lockhart and Randall W. Morrison, Tullahoma, Tennessee, for the appellant, Susan Anne Ogles.
Roger James Bean, Tullahoma, Tennessee, for the appellee, Thomas Wayne Ogles.
Brandon O. Gibson, J., delivered the opinion of the Court, in which Richard H. Dinkins, J., and W. Neal McBrayer, J., joined.
BRANDON O. GIBSON, JUDGE
I. Facts & Procedural History
Susan Anne Ogles ("Wife") and Thomas Wayne Ogles ("Husband") met in June 2001 and married in October 2001, when Wife was 54 years old and Husband was 56. This was the fourth marriage for both parties. When the parties married, Husband owned a cattle business and an 88-acre farm. He also owned a business called Quality Electric Service ("QES"), which he began in 1972. QES employed about six to eight electricians at the time of the marriage. Wife was working as a real estate broker for the Metropolitan Development Housing Agency in Nashville, but she quit her job one year after the parties' marriage, against Husband's wishes. Thereafter, Wife devoted a few hours a week to helping Husband with QES and the cattle business, but she was not otherwise employed.
After eight years of marriage, the parties separated in June 2010. Wife filed a complaint for divorce, alleging irreconcilable differences and inappropriate marital conduct. Husband filed a counter-complaint for divorce, alleging the same. Wife claimed an interest in the 88-acre farm, the cattle business, and QES, and she sought temporary and permanent alimony and an award of attorney's fees.
The parties entered into an agreed order providing that Wife would live in the marital residence pending the final hearing, and Husband would live in a small guest house on the farm. Husband agreed to pay Wife $500 per week as temporary support until the final hearing, and he was also responsible for paying Wife's health insurance premium, her telephone bill, one-half of the electric bill for the marital residence, the water and gas bill, and the utilities for the farm and the guest house. Wife was responsible for paying the other half of the electric bill for the marital residence.
During the proceedings, the parties sold their cattle for roughly $350, 000. By agreement, they used the proceeds to pay various expenses and split the remainder. The parties also agreed that the 88-acre farm was marital property subject to division and was worth $537, 000. However, the parties could not agree as to the ownership of QES or its present value. Since the parties married in 2001, QES had expanded considerably. The number of employees had increased from roughly six or eight to about 29. The number of company vehicles increased from four or five to about 15 or 16. Wife asserted that she substantially contributed to the increase in value of QES during the marriage, and therefore, she should be awarded a portion of the increased value as marital property. Husband claimed that Wife did not substantially contribute to the increase in value of QES during the marriage, so the business should remain his separate property.
The divorce trial was held over the course of three days in March and April 2013. By that time, the divorce case had been pending for over two and a half years, and the parties had been married for eleven years. Both parties testified about the assets they accumulated during the marriage, and they disputed whether certain items should be classified as marital or separate property. They described their employment history and monthly expenses as these subjects relate to the issue of alimony. Both parties presented expert testimony regarding the value of QES. The trial court also heard testimony from the accountant who prepared the tax returns for QES, the field supervisor at QES, one of the farm hands employed by Husband, and the woman Husband was dating at the time of trial.
On August 1, 2013, the trial court entered a detailed opinion spanning 24 pages, and on November 18, 2013, the court entered an additional order clarifying its rulings on several issues. The court found that "both parties have engaged in conduct that is considered grounds for divorce." The court classified the 88-acre farm as marital property and gave Husband the option of purchasing Wife's one-half interest in the farm for $268, 500 or auctioning the property. It noted that the proceeds from the cattle had already been equally divided. The court specifically addressed numerous items of personal property and classified them as separate or marital property. The trial court awarded Wife marital assets valued at $420, 034 and awarded Husband marital assets and debts with a net value of $450, 262. (These amounts did not include the funds already received from the sale of the cattle or the value of QES.) The court classified QES as Husband's separate property because it was owned prior to the marriage; however, it classified the increase in value of QES during the marriage as marital property subject to division. The court adopted the valuation of QES proposed by Husband's expert and valued the company at $260, 000. The court concluded that QES was worth $124, 000 when the parties married in 2001. The court found that Husband's contribution to the preservation of QES and its increase in value exceeded the contribution made by Wife during the marriage, so it awarded Husband 60% of the increase in value and awarded Wife 40%. As a result, Husband was required to pay Wife $54, 400 for her share of the increased value of QES. The court awarded Wife transitional alimony for 14 months at $2, 000 per month. Finally, the court found that both parties contributed to the breakup of the marriage and had the ability to pay their own attorney's fees. Wife timely filed a notice of appeal.
II. Issues Presented
Wife presents the following issues, which we have slightly restated, for review on appeal:
1. Whether the trial court erred in assigning a value to QES;
2. Whether the trial court erred in designating certain items of property as marital property rather than Wife's separate property;
3. Whether the trial court erred by failing to award Wife an interest in certain property acquired by Husband during the pendency of the divorce proceeding;
4. Whether the trial court erred in the type and amount of alimony awarded to Wife;
5. Whether the trial court erred in declining to award Wife attorney and expert fees.
For the following reasons, we affirm the decision of the circuit court and remand for further proceedings.
III. Standard of Review
On appeal, a trial court's factual findings are presumed to be correct, and we will not overturn those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005). When the resolution of issues depends on the truthfulness of witnesses, the fact-finder, who has the opportunity to observe the witnesses in their manner and demeanor while testifying, is in a far better position than this Court to decide those issues. Mach. Sales Co. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002). "The weight, faith, and credit to be given to any witness's testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court." Id. We review a trial court's conclusions of law under a de novo standard upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
A. Valuing QES
Wife's first contention on appeal is that the trial court erred in assigning a value of $260, 000 to QES. As noted above, both parties retained experts to evaluate QES and render an opinion on its present value. Wife's expert was Steve Maggart, a certified public accountant and accredited business valuator who had been employed in the accounting field since 1972. Mr. Maggart testified that there are several methods available for valuing a business such as QES and said that he evaluated QES using several different approaches. First, Mr. Maggart applied the book value method and determined that QES would be valued at $274, 000 using that approach. Next, Mr. Maggart applied the asset based method of valuation and determined that QES would be valued at $378, 000 under that approach. Mr. Maggart then applied the capitalization of earnings method and several variations of that method using data from a range of years. Using information from a five-year range in his capitalization of earnings calculation, Mr. Maggart reached a value of $853, 000. Using information only from 2011, he reached a capitalization of earnings value of $610, 000. Using estimated figures for the year 2012, he calculated a value of $880, 000. Using the estimated figures for 2012 in the five-year calculation, he got a value of $774, 000. Mr. Maggart believed that the capitalization of earnings method was the most appropriate approach for valuing QES but said that the asset value method should also be considered in the analysis. After considering his conclusions from all of these various methods, Mr. Maggart determined that $725, 000 was "a fair number" and constituted his final opinion as to the value of QES.
Husband's expert was Gerald LeCroy, who was also a certified public accountant and certified valuation analyst. He had been practicing since 1962. Mr. LeCroy also discussed three fundamental approaches for valuing a business such as QES – a market approach, a net asset approach, and a capitalized earnings approach. Mr. LeCroy determined that the market approach was not an appropriate method for valuing QES. He applied the net asset value method and determined that QES would be valued at $260, 000 under that approach. He also used the capitalization of earnings approach and determined that QES would be valued at $245, 000 under that method. Mr. LeCroy believed that ...