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Holdsworth v. Holdsworth

Court of Appeals of Tennessee, Jackson

June 3, 2015

STEVEN A. HOLDSWORTH
v.
WENDY ALFORD HOLDSWORTH

Session March 10, 2015

Direct Appeal from the Circuit Court for Shelby County No. CT-000718-11 James F. Russell, Judge

Amy J. Farrar, Murfreesboro, Tennessee, and Lanier Fogg, Memphis, Tennessee, for the appellant, Steven A. Holdsworth.

George Lawrence Rice, III and Mary Louise Wagner, Memphis, Tennessee, for the appellee, Wendy Alford Holdsworth.

Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.

OPINION

BRANDON O. GIBSON, JUDGE

I. Background and Procedural History

Steven Holdsworth ("Husband") and Wendy Alford Holdsworth ("Wife") met when they were both students at the University of Texas-Arlington. The parties married in Texas in July 1994. After the marriage, they remained in Texas and continued to pursue their education. In 1995, Wife earned a Master's Degree of Science in Social Work from the University of Texas-Arlington. In 1999, Husband earned a Master of Business Administration degree in Financial and Estate Planning from the University of Dallas. Shortly thereafter, the parties moved to Memphis to be closer to Wife's parents. After moving to Memphis, Wife got a job as a social worker with Shelby County Schools, and Husband began working as a financial planner for Legacy Wealth Management ("LWM"), where he remained employed through the time of trial.

In April 2005, Wife resigned from her position with Shelby County Schools to stay home and provide care for her mother, who had been experiencing serious health issues. In January 2007, Wife gave birth to the parties' only child. For the remainder of the marriage, Wife stayed at home to care for the parties' daughter. In the meantime, Husband was extremely successful in his career at LWM. By 2008, Husband rose to the position of Managing Director and was receiving a yearly compensation that allowed the family to live comfortably. They took several trips to Hawaii and, in 2009, purchased a five-bedroom home in Cordova for $415, 000.

In 2008, Husband met Elizabeth McFadden[1] ("Ms. McFadden") while both were serving on the board of directors of a local trade association. Over time, the relationship between the two transitioned from professional to personal, and in November 2009, Husband began having an affair with Ms. McFadden. At the time, Ms. McFadden was married and had two children of her own.

As Husband's relationship with Ms. McFadden became more serious, it had a significant impact on both his personal and professional life. In January 2011, Husband told Wife he wanted a divorce. On February 16, 2011, Husband filed a petition for divorce on the ground of irreconcilable differences. Around the same time, Ms. McFadden applied for a position at LWM and was hired by the company. Although Husband served on the three-person committee that interviewed Ms. McFadden and ultimately made the hiring decision, he opted not to disclose the extent of his personal relationship with Ms. McFadden prior to her hire. Despite Husband's efforts to conceal the romantic nature of the relationship, it did not take long for his coworkers at LWM to learn that he was having an affair with Ms. McFadden. In March 2011, the company forced Husband to resign from its board of directors and take a sixty-day leave of absence. Additionally, according to the testimony of Husband and Wife at trial, the company reduced Husband's annual base salary from $125, 000 to $100, 000.

Despite Husband's failure at concealing the affair from LWM, he still attempted to conceal it from Wife by telling her that his leave of absence was voluntary and taken in response to the recent death of his father. Not surprisingly, Wife found out about the affair shortly thereafter and filed an answer and counter-complaint for divorce on May 6, 2011. As the divorce proceedings commenced, the parties attempted to move on with their lives. In June 2011, Wife moved out of the parties' marital residence into a home she rented from her parents. In October 2011, the parties sold the marital residence at a significant loss, and Husband moved into an apartment. Husband was forced to draw down a significant portion of his 401(k) to cover a $59, 879 deficit on the sale of the home. In an attempt to cut down on his living expenses, Husband moved in with Ms. McFadden in a rented home in August 2012. In the meantime, the divorce proceedings grew exceedingly contentious.

Divorce Proceedings

After the parties filed over 300 pleadings and made more than thirty court appearances for hearings on various petitions and motions, the case was finally set for trial beginning April 29, 2013. Prior to trial, each party submitted proposed permanent parenting plans ("PPP") and sworn affidavits of their respective incomes and expenses pursuant to Local Rule 14(C).[2]

Wife's proposed PPP set forth a parenting schedule, providing that the child would spend 288 days with Wife and 77 days with Husband. The plan also provided that until such time as Husband and Ms. McFadden were lawfully married, Husband would not be allowed to introduce the child to Ms. McFadden or exercise overnight visitation with the child. Wife listed Husband's monthly imputed income as $15, 050[3] and sought $1, 421 from him in monthly child support. Using similar estimations of Husband's monthly income, Wife sought $34, 109.25 in retroactive child support that accrued during the pendency of the divorce proceedings. In her Rule 14 affidavit, Wife listed her monthly income from her private practice as a licensed clinical social worker as $437. Wife listed $8, 631 in monthly expenses, which she claimed resulted in a $6, 773 monthly shortfall. The expenses included rent, utilities and home maintenance expenses, food and clothing, and child-care expenses. Some of the expenses listed related to her business, such as $1, 500 in office rent and staffing. Wife also listed $1, 788 in monthly payments on promissory notes executed in favor of her parents for attorney's fees and living expenses. To offset the deficit in her monthly budget, Wife sought an award of alimony in futuro from Husband payable as $4, 000 per month for sixty months, then $7, 000 per month for sixty months, then $8, 000 per month for 300 months. Wife also submitted that she should receive alimony in solido for her share of the parties' primary marital asset: Husband's LWM stock, which she valued at $839, 261. Wife specified that the award of alimony in solido should be payable over approximately twenty-four years, with three percent interest, beginning at $15, 000 per year and increasing by $2, 000 each year until fully paid. Finally, Wife sought an award of alimony in solido to repay her attorney's fees and living expenses incurred in connection with the divorce. Wife attached the affidavit of her attorney listing her attorney's fees and expenses in the amount of $346, 683.96.

Perhaps not surprisingly, Husband's filings presented a drastically different picture of the parties' respective incomes and expenses. Husband's proposed PPP also designated Wife the primary residential parent, but set forth a parenting schedule that provided that the child would spend 255 days with Wife and 140 days with Husband.[4]Husband's proposed PPP did not contain any restrictions on his parenting time related to Ms. McFadden. Husband's plan sought to impute monthly income of $3, 500 to Wife and provided that he would pay her $973 in monthly child support. In his Rule 14 affidavit, Husband listed his gross monthly income from LWM as $8, 343.[5] Husband stated that his net monthly pay, after tax and benefit deductions, was $5, 733. Husband listed $7, 823 in monthly expenses, which he claimed resulted in a $2, 090 monthly shortfall. Like Wife, Husband listed expenses for rent, utilities, home maintenance, etc. Husband also listed $1, 438 in expenses related to the parties' child, including child support and $3, 008 in monthly payments for litigation expenses, credit card debt, and personal loans. Husband agreed that the LWM stock should be classified as marital property and divided equally but stated that the value of the stock was $468, 599. Husband's filings did not propose any specific method of splitting the remainder of the parties' marital property.

A bench trial was conducted over the course of eleven days, beginning on April 29, 2013 and concluding with closing arguments on May 15, 2013. The parties stipulated the existence of grounds for divorce, and evidence was presented on other issues, such as spousal support, child support, the PPP, distribution of marital assets and debt, and attorney's fees. The trial court also heard a great deal of testimony regarding the appropriate valuation of the parties' primary marital asset: the 5, 030 shares of LWM stock. In addition to hearing testimony from Husband and Wife, the court heard the testimony of Robert Vance, an expert in forensic accounting, and Jim Isaacs, the President and CEO of LWM. The court also reviewed the deposition testimony of the child's psychologist, Dr. Elizabeth Harris. On May 15, 2013, Wife's attorney submitted an affidavit of attorney's fees stating that through that date, Wife had been charged $384, 652.50 in attorney's fees and $36, 420.82 in expenses. Wife argued that based on her limited income, she did not have the ability to pay her own attorney's fees and expenses and requested that the trial court order Husband to pay the full $421, 073.32 amount as alimony in solido.

July 25, 2013 Order

After reviewing the testimony and exhibits presented at trial, the trial court announced its findings and conclusions orally on May 29, 2013. On July 25, 2013, the trial court entered its Final Decree of Divorce along with a separate written memorandum of Findings of Fact and Conclusions of Law. Pursuant to the parties' stipulation that Husband's inappropriate marital conduct constituted grounds for divorce, the trial court declared the parties divorced. With respect to the division of property, the trial court found that the parties' compliance with Local Rule 14 was "marginal at best" and made its task of dividing the marital assets nearly impossible. Nevertheless, the court attempted to make such an equitable distribution. The court awarded each party the cars, furniture, and other personal property currently in their possession. The trial court found that the parties possessed "modest sums" of money held in various checking and savings accounts and ordered that each party retain the funds of separate bank accounts and split funds in any joint accounts. The trial court found that the parties' other marital assets included approximately $57, 735 in Husband's LWM 401(k) account and $43, 319 held in a joint escrow account by the parties' attorneys. The court awarded Husband the $43, 319 held in escrow but ordered that it be used to satisfy the parties' two substantial marital debts: $29, 584 in credit card debt and $24, 597 owed to the IRS for taxes due but not paid in 2011. The court also awarded Husband the full amount of his 401(k) but ordered that it also be used to satisfy the marital debts if they were not paid off within a year. Because the parties sold the marital home during the course of the litigation, the parties did not have mortgage debt at the time of the hearing.

The parties' primary marital asset at the time of the hearing was Husband's 5, 030.03 shares of LWM stock. Notably, the stock was issued by LWM subject to tight restrictions on its transfer and liquidation. At the time of the trial, the stock could not be liquidated without penalty of a substantial discount. Throughout the proceedings, each party vigorously disputed the other's valuation of the stock. Wife argued that the stock should be valued at $839, 261, an amount based on its 2012 year-end book value as set forth in an independent audit. Conversely, Husband argued that the stock should be valued at $468, 599, an amount the trial court determined to be based on its value after the penalty and after taxes. The trial court accepted Wife's valuation of the stock and concluded that she should be awarded fifty percent of that amount, or $419, 631. Due to the restrictions on the transfer of the stock, the trial court ordered that Husband pay that amount, with three percent interest annually, as alimony in solido over a period of years with payments beginning at $15, 000 per year and increasing by $2, 000 per year until fully paid. Finally, the court found that Husband dissipated marital assets by writing checks to Ms. McFadden for $15, 633.06 and ordered that Husband reimburse Wife that amount.

Next, the court turned its attention to parenting issues. After reviewing the proposed PPPs submitted by each party, the court noted the parties agreed that Wife should be named the child's primary residential parent. The parties' primary dispute with regard to parenting was whether the court should impose restrictions on the presence of Ms. McFadden around the child. Husband's proposed PPP did not impose any restrictions or limitations with regard to Ms. McFadden. Wife's proposed PPP provided that until Father lawfully married Ms. McFadden, Father would not be permitted to exercise any overnight parenting time with the child and would not be permitted to leave the child in Ms. McFadden's care for any length of time. The trial court adopted Wife's proposed PPP. In doing so, it expressed concern regarding Ms. McFadden's behavior and her parenting of her own children. Additionally, the court found that Husband prioritized his relationship with Ms. McFadden over his relationship with the child. Citing those concerns, the court found that Wife's proposed PPP would serve the child's best interests and adopted her plan without any modification. As such, the court also adopted Wife's calculations of the parties' respective monthly incomes for purposes of computing Husband's child support obligation and ordered Husband to make child support payments to Wife of $1, 421 per month. Additionally, the trial court ordered Husband to pay retroactive child support of $34, 109.25 for arrearages from the date of the parties' separation through the date of the trial.

Next, the trial court addressed the issue of spousal support. Given the large income disparity of the parties, the trial court determined that Wife was the "disadvantaged spouse" as that term is used in the relevant statutes. To determine whether spousal support was warranted and, if so, the nature, amount, and duration of the support, the trial court considered Wife's need and Husband's ability to pay. Based on Wife's pre-trial filings, the court found that Wife demonstrated a need for long-term support of $4, 000 per month. In considering Husband's ability to pay that support, the trial court examined Husband's pre-trial filings and rejected several of the litigation-related expenses and loans he had listed as expenses. After doing so, the court calculated Father's "real" expenses to be $4, 179 per month. The trial court found that even if it accepted Husband's calculation of his net monthly income and subtracted Husband's "real" expenses, Husband would be able to meet his child support obligations, make his monthly support payments, and still have money left over each month. Consequently, the court ordered Husband to pay Wife $4, 000 per month as alimony in futuro until her death or remarriage. To secure that obligation, the trial court also ordered Husband to secure and maintain a life insurance policy in the sum of $1, 500, 000 with Wife designated as the primary beneficiary until her death or remarriage.

Finally, the court addressed Wife's contention that Husband should be responsible for her attorney's fees and other litigation expenses. In doing so, the trial court stated that the litigation was "entirely of the Husband's making." The trial court found that Husband filed the original complaint for divorce, leaving Wife with no choice but to defend herself. Moreover, the trial court found that many of the expenses incurred by Wife in the lawsuit were the result of Husband's attempts to throw up "smoke screen after smoke screen" and "roadblock after roadblock" in the discovery process. The trial court ordered that Husband pay $421, 073.32 to Wife as alimony in solido for her attorney's fees and expenses incurred through May 14, 2013. Additionally, the trial court ordered that Wife's attorney file an additional supplemental affidavit to include additional attorney's fees and expenses incurred after that date through the entry of the final decree of divorce. Wife's attorney subsequently filed an affidavit reflecting additional attorney's fees and expenses in the amount of $40, 513.50, and the court ordered Husband to also pay that amount as alimony in solido.[6]

In sum, as set forth in its July 25, 2013 Final Decree of Divorce, the trial court awarded Wife the following judgments against Husband: (1) $419, 631, reflecting the value of Wife's interest in LWM stock; (2) $15, 633.06, reflecting the amount of Husband's dissipation of marital assets; (3) $34, 109.25, reflecting the amount of retroactive child support Husband owed; (4) $421, 073.32 for attorney's fees and expenses incurred through May 14, 2013; and (5) 40, 513.50 for attorney's fees and expenses incurred from May 15 through July 18, 2013. The listed amounts reflected a total judgment against Husband in the amount of $930, 960.13. The trial court also ordered Husband to make payments to Wife of $1, 421 per month in child support and $4, 000 per month in alimony in futuro. To secure satisfaction of the judgments, the trial court imposed a lien on all LWM stock and all real and personal property owned or thereafter acquired by Husband. Father timely filed a Notice of Appeal from the trial court's July 25, 2013 ruling. Prior to Husband's appeal being heard by this Court, however, events transpired that necessitated further proceedings in the trial court.

Modification Proceedings and March 13, 2014 Order

On November 14, 2013, a Sheriff's deputy went to the residence shared by Husband and Ms. McFadden to execute on a levy filed by Wife. While searching the premises for property to levy, the deputy discovered drug paraphernalia and a marijuana plant in the parties' detached garage. Husband and Ms. McFadden were both arrested and charged with unlawful possession of a controlled substance with intent to sell.

On December 19, 2013, Wife filed a petition to modify the PPP order in light of the criminal charges pending against Husband and Ms. McFadden. In her petition, Wife sought to temporarily modify the PPP to suspend Husband's parenting time or, alternatively, to limit Husband's parenting time to two hours per day on days he is scheduled to have parenting time and require that his parenting time be supervised by Wife, Wife's mother, or another person charged with such supervision. Additionally, Wife sought to add provisions prohibiting the child from being taken to the home Husband shared with Ms. McFadden, prohibiting the child from being in Ms. McFadden's presence, prohibiting Husband from taking the child out of school, and requiring Husband, at his expense, to submit to random urine and hair follicle drug screens.

Prior to the trial court's hearing on the petition, the charges against Husband were dismissed, and Ms. McFadden entered a plea that placed her in a Diversion Program until January 2015. The trial court held a hearing on Wife's petition over the course of two days on January 31 and February 14, 2014. The trial court heard testimony from each party as well as from a Shelby County Sheriff's Deputy called to investigate the marijuana plant found in Husband's garage. At the outset of the proceedings, Wife's attorney submitted a proposed ruling that provided for modification of the PPP to add the following residential schedule and restrictions:

1. For the period of January 31, 2014 through January 20, 2015, the following conditions shall apply:
a. Father shall exercise unsupervised parenting time on the following dates and times: 5:00 p.m. to 8:00 p.m. on Fridays, 9:00 a.m. to 7:00 p.m. on Saturdays, and 9:00 a.m. to 5:00 p.m. on Sundays, every other weekend, beginning January 31, 2014.
b. Father may exercise additional, unsupervised parenting time from 5:30 p.m. to 7:00 p.m. on Tuesdays.
c. For those holidays that Father was permitted to exercise parenting time pursuant to the parties' Permanent Parenting Plan, entered July 25, 2013, Father may exercise unsupervised parenting time from 9:00 a.m. to 5:00 p.m.
d. Father shall continue to pick the child up from and return the child to Mother's residence.
e. Father shall not exercise any parenting time at the residence he shares with Ms. Elizabeth McFadden.
f. Father shall not permit Ms. McFadden to have any contact with [child] and shall not exercise any parenting time in the presence of or near Ms. McFadden.
g. This residential schedule shall be conditioned upon Father and Ms. McFadden agreeing to submit to three (3) urine and hair follicle drug screenings at Mid-South Drug Testing, to be randomly requested by Mother, at any time in Mother's discretion, and to be completed within five (5) hours of such request. Father shall pay for the screenings. If Father or Ms. McFadden either refuse to submit to a drug screening pursuant to the terms described in this paragraph or fail a screening, Father shall be limited to only supervised parenting time as described in Section B, including subsections one (1) through three (3), of the Fiat of Mother's Petition to Modify Permanent Parenting Plan Order, filed December 19, 2014.
2. If Ms. McFadden fulfills the requirements of her diversion program, which is scheduled to be completed on January 20, 2015, Father shall resume exercising parenting time consistent with the parties' Permanent Parenting Plan, entered July 25, 2013, with the following conditions:
a. Father must supervise [child] for the entire duration of his parenting time and shall not permit [child] to be in the care of Ms. McFadden unsupervised for any length of time.
b. This residential schedule shall be conditioned upon Father and Ms. McFadden agreeing to three (3) drug screenings per year, as set out in paragraph (1)(g) until January 20, 2017.

Wife testified that she was worried for her child's safety and viewed the restrictions in her proposed modified PPP as necessary to ensure that Ms. McFadden could demonstrate responsibility and appropriate behavior before being allowed around the child. During his testimony, Husband stated that the marijuana plant belonged to Ms. McFadden. Husband testified that Ms. McFadden obtained the plant to limit the severity of migraines she experienced over the course of the summer in 2013. Husband insisted he had not helped Ms. McFadden in growing or nurturing the plant and denied that he smoked marijuana. Husband testified that Ms. McFadden had never smoked marijuana around the child and insisted that the presence of the marijuana plant did not pose any threat to the safety of the child. Nevertheless, at the close of the hearing on February 14, 2014, the trial court announced its finding that a material change of circumstance had occurred and that the child's best interests would be served by modifying the PPP to include the residential plan and restrictions set forth in Wife's proposed ruling. On March 13, 2014, the trial court entered a written order memorializing its ruling and incorporating a transcript of its prior oral ruling. In a separate order, the trial court also awarded Wife $9, 528 for attorney's fees and expenses incurred in connection with her petition to modify. Husband timely filed a second Notice of Appeal from the trial court's March 13, 2014 ruling. This Court subsequently ordered that the two appeals be consolidated.

II. Analysis

Husband presents a number of issues for our review on appeal. We will address each of Husband's arguments in turn. Though Husband does not challenge the trial court's distribution of the parties' marital assets and debts, he contends that the trial court erred in concluding that he dissipated marital assets. Husband argues that the trial court erred in adopting Wife's proposed PPP, in modifying the PPP, in calculating Husband's child support obligation, and in awarding retroactive child support. Husband contends that the trial court erred in awarding alimony in futuro to Wife and in setting an amount of alimony in futuro that exceeds Wife's need and his ability to pay. Finally, Husband asserts that the trial court should not have ordered him to pay Wife's attorney's fees and litigation expenses.

Wife argues that the trial court's ruling should be affirmed. Though Wife does not seek any additional award of alimony in futuro, as further support for the trial court's decision she asserts that the trial court erred in excluding certain expenses in its calculation of her monthly need and in miscalculating the amount of Husband's net monthly income. Wife also seeks attorney's fees and expenses for this appeal.

On appeal, we review the trial court's findings of fact de novo on the record with the presumption that those findings are correct, "unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). Additionally, because the trial court has the opportunity to observe the witnesses' demeanor and hear the in-court testimony, we afford considerable deference to the trial court's credibility determinations and the weight given to oral testimony. Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App. 2010). We review the trial court's conclusions of law de novo with no presumption of correctness. Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003).

A. Dissipation

We begin by addressing Husband's argument that the trial court erred in concluding that he dissipated marital assets by writing checks totaling $15, 633.06 to Ms. McFadden. In its Findings of Fact and Conclusions of Law, the trial court stated:

90.There has been an issue raised in this case regarding dissipation by Mr. Holdsworth of marital assets or portions of the marital estate in terms of his relationship with Elizabeth McFadden. Found among the exhibits in the cause is Trial Exhibit No. 32 which is a Rule 1006 summary reflecting the sum of fifteen thousand six hundred thirty-three dollars and six cents ($15, 633.06) in checks actually written by Mr. Holdsworth to Elizabeth McFadden.
91.Again, considering the entire body of proof as a whole, the Court finds a dissipation of marital assets in that amount and will award judgment in favor of the Wife against the Husband. The record is not clear, but there appears to be other dissipation -- for example, money spent for gifts of jewelry and the like to Ms. McFadden -- but there is no empirical evidence in this record of a specific amount for which the Court may enter judgment without speculation.

Husband acknowledges that he wrote the checks to Ms. McFadden but contends that the trial court erred in failing to consider the purpose of the checks. Husband contends that the majority of the checks are for living expenses he and Ms. McFadden shared after moving in together in August 2012.

A party's dissipation of marital or separate property is one of many factors a trial court may take into consideration in making an equitable division of a marital estate. Tenn. Code Ann. § 36-4-121(c)(5). While there is no statutory definition of dissipation, the term typically refers to the use of marital property for a purpose unrelated to the marriage, often to "hide, deplete, or divert" marital property after a marriage is irretrievably broken. Larsen-Ball v. Ball, 301 S.W.3d 228, 235 (Tenn. Ct. App. 2010). The concept of dissipation is based on waste. Altman v. Altman, 181 S.W.3d 676, 681 (Tenn. Ct. App. 2005). In determining whether dissipation has occurred, the court must distinguish between dissipation and discretionary spending. Larsen-Ball, 301 S.W.3d at 235. While discretionary spending may be ill-advised, it is typical of the parties' expenditures throughout the course of the marriage. Id. Expenditures that constitute dissipation, on the other hand, are so far removed from normal expenditures that they can be characterized as wasteful or self-serving. See Watson v. Watson, 309 S.W.3d 483, 490 (Tenn. Ct. App. 2009). In Watson, this Court discussed the appropriate analysis for allegations of dissipation:

In determining whether dissipation occurred, we find trial courts should consider the following: (1) whether the evidence presented at trial supports the alleged purpose of the various expenditures, and if so, (2) whether the alleged purpose equates to dissipation under the circumstances. The first prong is an objective test. To satisfy this test, the dissipating spouse can bring forward evidence, such as receipts, vouchers, claims, or other similar evidence that independently support the purpose as alleged. The second prong requires the court to make an equitable determination based upon a number of factors. Those factors include: (1) the typicality of the expenditure to this marriage; (2) the benefactor of the expenditure, namely, whether it primarily benefitted the marriage or primarily benefitted the sole dissipating spouse; (3) the proximity of the expenditure to the breakdown of the marital relationship; (4) the amount of the expenditure.

Id. at 490-91 (quoting Ward v. Ward, No. W2001-01078-COA-R3-CV, 2002 WL 31845229, at *3 (Tenn. Ct. App. Dec. 19, 2012)). The party alleging dissipation has the initial burden of production and the burden of persuasion at trial. Larsen-Ball, 301 S.W.3d at 235. Once the party alleging dissipation establishes that the money has been dissipated, the burden shifts to the party who spent the money to produce evidence to show that the expenditures were appropriate. Watson, 309 S.W.3d at 491.

During the hearing, Wife introduced evidence in the form of a Rule 1006 summary[7] that between September 1, 2011 and March 14, 2013, Husband wrote forty-one checks to Ms. McFadden totaling $15, 633.06. Husband did not object to the evidence. By introducing evidence of the checks, several of which are for amounts exceeding one thousand dollars, written by Husband to his paramour, Wife satisfied her initial burden of production and shifted the burden to Husband to produce evidence that the expenditures were appropriate. See Larsen-Ball, 301 S.W.3d at 236 (stating that the money husband spent on his paramours "clearly constitutes dissipation"). Husband contends that he met that burden, but relies on little more than his own testimony in doing so. Specifically, Husband asserts that his undisputed testimony demonstrates that the checks to Ms. McFadden were for living expenses. Given the trial court's findings on Husband's credibility, this argument carries little weight. Moreover, we note that of the ten checks for which Husband gave an explanation on direct examination, four were intended to reimburse Ms. McFadden for rental of a condo for their July 2012 South Carolina vacation. In his brief, Husband also states that the memo line of each check contains a notation of its purpose. There are 156 checks attached to the Rule 1006 summary submitted at trial. We decline to sift through each check in an effort to discern which notations appear to indicate an expenditure for living expenses when Husband has apparently declined to do so himself. Moreover, we note that while Husband states that each check contains a notation of its purpose, he does not argue that the stated purposes are not indicative of dissipation. In light of the foregoing, we are not able to conclude that the evidence preponderates against the trial court's finding that Husband's expenditures constituted dissipation.

Notwithstanding our conclusion that the evidence supports the trial court's finding that the checks Husband wrote to Ms. McFadden constituted dissipation, we note that the trial court ordered Husband to reimburse Wife for the full amount of the checks. The trial court's award ignores the fact that Husband also had an interest in the money. See Odom v. Odom, No. E2007-02250-COA-R3-CV, 2008 WL 4415429, at *8, (Tenn. Ct. App. Sept. 30, 2008) (noting that each of the divorcing parties was entitled to one-half of the dissipated assets). Here, because the trial court divided the parties' marital assets equally, we conclude that Husband is entitled to one-half of the assets he dissipated. Therefore, we modify the amount of the trial court's dissipation award to $7, 816.53 to reflect Husband's one-half interest in the dissipated assets.

B. Permanent Parenting Plan

This case presents an unusual mix of issues related to the PPP. The trial court adopted Wife's proposed PPP on July 25, 2013 as part of its Final Decree of Divorce. Later, however, Husband and Ms. McFadden were discovered to have a marijuana plant growing in their garage and were both arrested and charged with unlawful possession of a controlled substance with intent to sell. Wife filed a petition to modify the PPP to impose certain restrictions on Husband's parenting time. After a hearing, the trial court modified the PPP to incorporate the restrictions. Husband challenges both the original PPP and the modified PPP. Because the modified PPP is essentially the same as the original PPP with additional limitations on Husband's parenting time, it is necessary for us to address Husband's challenges with regard to both. To begin, we address the arguments Husband raises related to the trial court's entry of the original PPP.

Original Permanent Parenting Plan

Prior to trial, each party submitted a proposed PPP. In its Final Decree of Divorce, the trial court adopted Wife's proposed PPP without modification. Though the plans submitted by each party provide for Wife to be designated as child's primary residential parent, Husband takes issue with the trial court's allocation of residential parenting time.

The residential parenting schedule in Wife's proposed PPP provided for Wife to have 288 days of parenting time with the child per year and for Husband to have 77 days. The parenting schedule in Husband's proposed PPP provided for Wife to have 255 days of residential parenting time with the child per year and for Husband to have 140 days. As the trial court noted, Husband's proposed allocation of residential parenting time calls for a 395-day calendar year. Though Husband's proposed PPP sets forth day-to-day and holiday/school vacation schedules, given the many variables it contemplates, it is impossible to determine exactly where the extra thirty days of parenting time should be subtracted. In any event, the trial court found that after considering the testimony and evidence presented by the parties, "the plan proposed by Mother is in the manifest best interest of the child under all of the facts and circumstances in this case." Husband argues that the evidence presented "strongly preponderates" against the trial court's parenting time determination.

Creating a workable parenting plan is one of the most important responsibilities courts have. Armbrister v. Armbrister, 414 S.W.3d 685, 696 (Tenn. 2013). The Tennessee Supreme Court recently explained the standard applicable to this Court's review of a residential parenting schedule in Armbrister:

Because decisions regarding parenting arrangements are factually driven and require careful consideration of numerous factors, Holloway v. Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn.Ct.App.1997), trial judges, who have the opportunity to observe the witnesses and make credibility determinations, are better positioned to evaluate the facts than appellate judges. Massey– Holt v. Holt, 255 S.W.3d 603, 607 (Tenn.Ct.App.2007). Thus, determining the details of parenting plans is "peculiarly within the broad discretion of the trial judge." Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973)). "It is not the function of appellate courts to tweak a [residential parenting schedule] in the hopes of achieving a more reasonable result than the trial court." Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.2001). A trial court's decision regarding the details of a residential parenting schedule should not be reversed absent an abuse of discretion. Id. "An abuse of discretion occurs when the trial court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice." Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.2011). A trial court abuses its discretion in establishing a residential parenting schedule "only when the trial court's ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Eldridge, 42 S.W.3d at 88.

Armbrister, 414 S.W.3d at 693.

Husband contends that the trial court adopted Wife's proposed PPP based on its moral disapproval of his actions and its desire to punish him for his affair with Ms. McFadden. Husband argues that the trial court's underlying motivation for adopting Wife's plan is evidenced by its failure to conduct a comparative fitness analysis or consider the statutory factors enumerated in Tennessee Code Annotated section 36-6-404(b).[8] Husband further contends that an examination of the trial court's written statement of findings and conclusions demonstrates that the court failed to consider many important facts before adopting Wife's proposed PPP. Husband insists that after proper reexamination of the facts, this Court should articulate a modified PPP that provides Husband with more participation in the child's life.

In crafting a residential schedule, section 36-6-404(b) of the Tennessee Code directs the trial judge to consider fifteen enumerated factors, as well as any other factors it deems relevant, to determine how much time the child should spend with each parent. Although the statute does not require the trial court to list each applicable factor along with its conclusion as to how that particular factor impacted the court's overall determination, the statute clearly requires the court to at least consider all applicable factors. In re Connor S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *7 (Tenn. Ct. App. Nov. 8, 2012) (internal citations omitted).

Here, the trial court did not reference each of the section 36-6-404(b) factors specifically. With regard to the fifteen enumerated factors, the trial court stated in ...


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