Session January 26, 2016
from the Circuit Court for Sumner County No. 2013CV715 Jane
W. Wheatcraft, Judge
appeal arising from the parties' divorce, the husband
challenges the trial court's valuation of his interest in
a limited partnership, division of the marital estate, awards
of transitional alimony and alimony in solido, child support
order, and adoption of the wife's proposed permanent
parenting plan. The husband also appeals the trial
court's denial of his motion for a restraining order. We
conclude that the evidence does not preponderate against the
trial court's valuation of the husband's interest in
the limited partnership. We also conclude that the trial
court did not err in denying Husband's motion for a
restraining order. However, because the trial court failed to
provide sufficient findings of fact and conclusions of law,
we are unable to effectively review the remainder of the
issues raised by the husband on appeal. Therefore, we vacate
the judgment of the trial court with regard to these
remaining issues and remand for further proceedings in
accordance with this opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated in Part, Affirmed in Part, and Case Remanded
Tarsila Crawford, Nashville, Tennessee, for the appellant,
Bill Frank Brainerd.
N. Oldham, Gallatin, Tennessee, for the appellee, Alisa
Neal McBrayer, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Richard H. Dinkins, J.,
NEAL McBRAYER, JUDGE
Factual and Procedural Background
24, 2013, after fifteen years of marriage, Bill Frank
Brainerd ("Husband") filed for a divorce from his
wife, Alisa Rheanne Brainerd ("Wife"), in the
Circuit Court for Sumner County, Tennessee. Wife filed a
counterclaim for a divorce. Both parties requested that the
court equitably divide their marital property and debt. Wife
also requested alimony. The marriage produced two children,
aged fourteen and eleven. Husband agreed that Wife should be
named primary residential parent for the children and only
requested that the court establish reasonable visitation.
Testimony at the Hearing
court held an evidentiary hearing on May 29, 2014. At the
outset, Husband stipulated that Wife was entitled to a
divorce based on his adultery. Thus, the hearing focused on
the valuation and division of marital property, the terms of
the parenting plan, child support, and alimony.
time of the hearing, Husband was forty-five, and Wife was
forty-nine. During their fifteen-year marriage, the parties
had accumulated a modest amount of assets and minimal debt.
They each had retirement accounts, cars and personal
property. Husband also had a one-percent interest in a
limited partnership, SabeRex Group, Ltd. In addition, the
couple jointly owned a home and checking and savings
accounts. The marital debt included a mortgage, a car note,
and a small amount of credit card debt.
parties could not agree on the value of Husband's
interest in SabeRex. Husband testified that he was prohibited
by the terms of a confidentiality agreement from disclosing
the value of the partnership but tried to assure the court
that his interest had little value. Wife, on the other hand,
testified that she overheard Husband admit that the
partnership was worth between five and seven million dollars.
Wife also conducted her own research into the SabeRex's
worth, which she claimed corroborated Husband's
admission. Based on her research and Husband's income
from the interest during the marriage, she valued the
interest at $54, 000.
source of contention was Wife's earning capacity. Both
parties were college educated and worked full-time at the
beginning of the marriage. After the birth of their first
child, however, they agreed Wife would stay home and raise
their children. Consequently, Wife was not employed outside
the home between 2001 and 2007. From 2008 through the time of
the hearing, Wife worked one day per week as an
ultra-sonographer at a nearby medical center.
testified that she wanted to continue working part-time until
their youngest child graduated from high school. She conceded
that no physical or mental disability prevented her from
seeking full-time employment. After the divorce, she planned
to increase her work hours while remaining a part-time
employee. To avoid incurring child care expenses, she planned
to work the additional hours during Husband's parenting
time. While acknowledging Wife had been a stay-at-home mother
for the previous eleven years, Husband claimed she was
capable of working full-time after the divorce. According to
Husband, Wife could return to full-time employment within six
to eight months after the divorce.
explained that, even though they were in school, the children
still needed her care. The son had been diagnosed with
"intermittent exotropia, " which involved a
disconnect between his visual reception and his brain
reception. He completed nine months of vision therapy, and
while he had recently been more successful in school, the
condition had not been cured. The condition most notably
affected his progress in math, necessitating a weekly tutor.
Wife testified that the son also had difficulty completing
homework, sometimes spending two to three hours on homework
parents disputed the amount of the expenses for the
children's extracurricular activities and whether it
would be appropriate to incorporate these amounts into
Husband's child support payment. Since finishing therapy,
the son had developed interests in hip hop dance and
basketball. Wife testified that the son loved participating
in these activities and consequently had developed increased
self-confidence. The daughter was heavily involved in
competitive cheerleading. In the past, she had been part of a
traveling competition team. At the time of the hearing, the
daughter had been accepted onto her high school cheerleading
squad. Husband and Wife disagreed over whether being a member
of the high school squad would prevent her from participating
in the traveling squad.
of the substantial disparity between the two parties'
incomes, Wife requested alimony. For the previous six or
seven years, Husband had worked in sales. Husband's gross
monthly income was $10, 342.15. By contrast, Wife's gross
monthly income was $1, 603.75. Although Husband's monthly
income would easily cover his estimated, post-divorce monthly
expenses of $2, 700, Wife testified she needed an additional
$2, 096.05 to make ends meet.
parties' dispute with regard to the residential parenting
schedule focused on two issues. First, Husband asked the
court to award him one overnight stay with the children
during the week. Wife objected, claiming Husband would not
help the children with their homework. Second, Husband
opposed a restriction in Wife's proposed parenting plan
that would prevent female children from staying overnight at
his home when he was exercising his parenting time. Wife
asserted that the restriction was justified, although she did
not believe Husband would behave inappropriately with their
daughter. According to Wife, Husband had a history of sexual
liaisons with women he met through internet websites, and
Husband had "used the children to make sexual
Circuit Court Ruling
2, 2014, the court entered a final decree of divorce, which
incorporated by reference a previously filed memorandum
opinion. The court granted Wife a divorce on the ground of
adultery. The court awarded each party their respective
retirement accounts and any requested personal property.
Husband also received his interest in SabeRex. The court
ordered the parties to pay off their marital debt, other than
the mortgage, from their joint savings account and to divide
the remaining funds equally. With the joint checking account,
the court awarded two-thirds to Wife and one-third to
court named Wife the primary residential parent of the
children, adopted Wife's proposed permanent parenting
plan, and awarded Husband visitation every other weekend and
Tuesdays for three hours. The court set child support at $2,
476.25 per month, including an upward deviation for the
expenses associated with the children's extracurricular
court awarded the marital home to both parties with the
proviso that Wife would remain in the home with the children
until the youngest child graduated from high school. After
the youngest child graduated, the house would be sold, and
the proceeds divided equally between Husband and Wife. While
Wife remained in the marital home, the court ordered Husband
to make the monthly mortgage payment of $1, 035.82 as
transitional alimony. The court awarded Wife an additional
$200.00 per month as alimony for two years. The court also
ordered Husband to pay Wife's attorney's fees.
Husband and Wife filed motions to alter or amend. Wife also
filed a motion for civil contempt based on Husband's
failure to pay child support as ordered. In response, Husband
filed a motion to reduce child support and to restrain Wife
from making derogatory remarks about him to the children and
on social media.
hearing on the pending motions, the court entered a
supplemental memorandum on January 23, 2015, intended to
"correct deficiencies in the original Order." In
the supplemental memorandum, among other things, the court
valued the marital home and Husband's interest in SabeRex
and awarded the home to Wife in fee simple along with the
responsibility for paying the mortgage. As a consequence of
the change in the division of the marital estate, the court
reconsidered the previous transitional alimony award and
ordered Husband to pay Wife $1, 500 per month in transitional
alimony until the youngest child graduated from high school.
The court denied Wife's motion for contempt and
Husband's motion for a restraining order and to reduce
child support. The court's supplemental ruling was
incorporated in an Amended Final Decree of Divorce, entered
on March 23, 2015.
raises numerous issues on appeal. First, he challenges the
court's valuation of his interest in the limited
partnership, the division of the marital estate, and the
award of transitional alimony and attorney's fees to
Wife. Second, Husband raises several issues with the award of
child support, including the calculation of Wife's
monthly gross income, the upward deviation for special
expenses, and the allowance of various credits on the child
support worksheet. Third, he contends the court erred in
adopting Wife's proposed permanent parenting plan.
Finally, Husband asserts the trial court erred in denying his
motion for a restraining order. Wife requests this Court
award her attorney's fees incurred on appeal.
Standard of Review
non-jury case, our review of the trial court's factual
findings is de novo upon the record, accompanied by a
presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. See
Tenn. R. App. P. 13(d). Our review of questions of law is de
novo, with no presumption of correctness. Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).
the issues raised by Husband implicate matters within the
trial court's discretion. See Armbrister, 414
S.W.3d at 693 (details of permanent parenting plans);
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
2011) (nature, amount, and duration of alimony awards);
Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007)
(division of marital property); Richardson v.
Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005) (child
support decisions). Our review of discretionary decisions is
limited. Beard v. Bd. of Prof'l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009). We do not
"second-guess the court below" or "substitute
[our] discretion for the lower court's." Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
Nonetheless, a lower court's discretionary decisions do
not escape appellate scrutiny. Id. In reviewing
discretionary decisions, we consider "(1) whether the
factual basis for the decision is properly supported by
evidence in the record, (2) ...