Session September 21, 2016
from the Circuit Court for Warren County No. 4540 Jon Kerry
Blackwood, Senior Judge.
appeal stems from a divorce proceeding where the wife was
awarded a divorce on the ground of adultery. The husband
appeals and raises several issues related to the trial
court's division of the marital estate. He also
challenges the trial court's award of alimony in
solido to the wife. Having reviewed the record
transmitted to us on appeal, we affirm the trial court's
division of the marital estate but vacate the award of
alimony and remand for further proceedings consistent with
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Vacated in Part, and Remanded
Timothy Pirtle, McMinnville, Tennessee, for the appellant,
Robert Kent Bewick.
Michael D. Galligan and Benjamin R. Newman, McMinnville,
Tennessee, for the appellee, Elizabeth Madeline Shelton
B. Goldin, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J.,
B. GOLDIN, JUDGE.
AND PROCEDURAL HISTORY
Kent Bewick ("Husband") and Elizabeth Madeline
Shelton Bewick ("Wife") were married on July 8,
1978. Two children were born of the marriage, both of whom
have now reached the age of majority. Husband is a dentist
who has practiced in both Tennessee and Indiana. Although
Wife previously worked in Husband's dental office for
much of the parties' marriage, she was employed as a
receptionist at a law firm at the time of trial.
parties were married while Husband was in dental school.
During the early years of the marriage, while Husband was
still pursuing his dental studies, the parties lived in
Nashville. Wife worked year-round to help pay for the
parties' living expenses, and Husband worked in the
summers when he was not in school.
Husband's graduation from dental school, he had the
opportunity to return to his home state of Indiana to
practice dentistry with his father. He declined the
opportunity at that time, however, and started a practice of
his own near Wife's family in McMinnville, Tennessee.
During the first several years of Husband's practice,
Wife stayed at home with the children and took care of the
parties' household. She also helped to recruit patients
for Husband by telling people in the community about his
dental practice. As the children got older, Wife began
working with Husband at his practice, assisting him in a
variety of ways. She also continued to perform the
parties' household duties, including laundry, cooking,
early 1990s, Husband developed a serious problem with his
cervical spine. Although this injury forced him to take a
two-year sabbatical from work, he eventually returned to the
practice of dentistry. To deal with reccurring pain, however,
Husband started to self-medicate by using Demerol. In 1996,
Wife started to suspect Husband was abusing the drug. Shortly
thereafter, Husband moved to Atlanta, Georgia, in order to
participate in a rehabilitative treatment program. He stayed
in the program for several months. While he was away from
McMinnville, Wife attended to the dental practice and
arranged for other dentists to temporarily fill in.
Husband's return from Atlanta, he once again was
presented with an opportunity to become a part of his
father's dental practice in Indiana. This time, Husband
did not reject the opportunity. In fact, Husband acquired a
two-thirds interest in a limited liability company, Bewick
Building Company LLC (the "Indiana LLC"), that
owned the building where the Indiana practice was
located. Although Wife and the parties'
children remained in McMinnville, Husband began to split his
time between Indiana and Tennessee in 1999. Typically, he
would work three days at his McMinnville dental practice and
then fly to Indiana to work three days at his father's
practice. Husband adhered to this work schedule for
approximately five years until he began alternating weeks
between Indiana and Tennessee. He maintained a regular work
presence in Indiana until 2010. There is no dispute that,
prior to his return to Tennessee full-time, Husband engaged
in an affair with one of the employees of his father's
practice. Wife would eventually learn of the affair, and the
parties separated. Husband's paramour would later move to
McMinnville, where she resided with him and worked in his
filed a complaint for divorce on August 16, 2013. In addition
to asserting that Husband was guilty of inappropriate marital
conduct, Wife alleged that irreconcilable differences had
developed between the parties. Her prayer included a number
of requests for relief, including the following: (1) that she
be awarded the marital home, (2) that the parties'
marital estate be divided equitably, and (3) that she be
awarded spousal support and attorney's fees.
filed an answer and counterclaim on January 21, 2014.
Therein, Husband admitted that irreconcilable differences had
arisen between the parties. Although he also admitted that he
was guilty of an extra-marital relationship, Husband
otherwise denied that he had committed inappropriate marital
conduct. Moreover, in his counterclaim, he expressly averred
that Wife was guilty of inappropriate marital conduct.
Shortly after the filing of Husband's answer, following a
hearing, the trial court ordered Husband to pay Wife
temporary spousal support in the amount of $3, 500.00 per
month. Wife would later file an answer to Husband's
counterclaim on August 4, 2015, wherein she denied that she
had committed inappropriate marital conduct.
was held over two days on August 5 and 6, 2015. On September
11, 2015, the trial court entered its findings of fact and
conclusions of law in the case. In addition to granting Wife
a divorce on the ground of adultery,  the trial court equitably
divided the parties' marital estate and ordered Husband
to pay Wife $6, 000.00 per month for ten years as alimony
in solido. Incident to its division of the
parties' marital estate, the trial court awarded Wife the
marital home, valued at over $430, 000.00, plus the
corresponding mortgage debt of $170, 000.00. For his part,
Husband was awarded his Tennessee dental practice, valued at
$210, 000.00, plus its "accompanying
debt." Husband was also awarded the interest he
acquired in the Indiana LLC, valued at $500,
000.00. Following the entry of the trial
court's September 11 order, Husband filed this timely
brief on appeal, Husband raises seven issues for our review.
Slightly rephrased, these issues are as follows:
1. The evidence preponderates against the classification of
Husband's interest in the Indiana LLC as marital
2. The evidence preponderates against the trial court's
division of marital property.
3. The evidence preponderates against the trial court's
apportionment of debt between the parties.
4. The trial court abused its discretion in ordering Husband
to pay Wife $720, 000.00 in alimony in solido.
5. The trial court erred in ordering Wife's
attorney's fees to be paid from a marital asset.
6. The trial court erred in finding that Husband dissipated
marital assets of $75, 000.00.
7. The trial court erred in excluding from evidence an offer
of proof by Husband that Wife inherited substantial assets
from her father.
case was tried by the trial court without a jury.
Accordingly, we review the case de novo upon the record with
a presumption of correctness regarding the trial court's
findings of fact. Riggs v. Riggs, 250 S.W.3d 453,
456 (Tenn. Ct. App. 2007). We will affirm the trial
court's findings unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d). In order for the
evidence to preponderate against a particular finding of
fact, it must support another finding of fact with greater
convincing effect. Ingram v. Wasson, 379 S.W.3d 227,
237 (Tenn. Ct. App. 2011) (citation omitted). When the
resolution of the issues in a case depends on the
truthfulness of witnesses, the trial judge is in a far better
position than this Court to decide those issues.
Riggs, 250 S.W.3d at 456 (citations omitted). As
such, the credibility accorded to a witness by the trial
court will be given great weight on appeal. Id.
(citations omitted). Unlike our review of the trial
court's factual findings, we review conclusions of law
with no presumption of correctness. Hyneman v.
Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003)
of proof related to Wife's alleged inheritance
begin our discussion by addressing Husband's concern that
the trial court erred in excluding from evidence an offer of
proof concerning certain assets that Wife inherited. Having
reviewed the record transmitted to us on appeal, we conclude
that we are unable to effectively review this issue. Towards
the conclusion of the trial court proceedings, the following
exchange occurred between Husband's counsel and the trial
[Husband's counsel]: Your Honor, we'd make one final
-- this will either be an offer of proof or an exhibit,
depending on what the Court finds with regard to [the] merit
of [Wife's counsel's] motion in limine regarding the
Shelton -- the Joe Howell Shelton testamentary trust. If the
Court reviews that motion and decides not to consider it,
then it will be an offer of proof, otherwise --
The Court: It will either be an exhibit or be an offer of
[Husband's counsel]: Very well. And with that, Your
Honor, the defense rests.
unable to discern the specific character of the evidence that
Husband wished the trial court to consider. No exhibit was
actually introduced, nor was any offer of proof actually
made. Moreover, the referenced motion in limine, which
apparently concerned the proposed evidence, is not contained
in the record.
it is not apparent from the transcript that Husband actually
made an offer of proof concerning Wife's alleged
inheritance, the trial court appeared to have specifically
rejected Husband's suggestion that Wife's interest in
a trust should be considered incident to the divorce. In its
findings of fact and conclusions of law, the trial court
specifically stated as follows: "The Court further finds
that the wife's interest in a trust is not her property,
in that she has no possessory interest in said
property." We assume that this finding was made in
connection with the trial court's review of the motion in
limine referenced by Husband's counsel at trial.
Husband's failure to actually make an offer of proof
concerning Wife's alleged inheritance is not necessarily
fatal on its own, see Singh v. Larry Fowler
Trucking, Inc., 390 S.W.3d 280, 286 (Tenn. Ct.
App. 2012) (noting that an offer of proof is not necessary
when the substance of the evidence and its reason for
exclusion are apparent from the context), the record
transmitted to us on appeal contains no details of the
alleged property interest that Husband wished for the trial
court to consider incident to the divorce. Again, the motion
in limine that apparently dealt with Wife's supposed
property interest is absent.
on the state of the record before us, we cannot ascertain
whether Wife possessed some type of property interest in a
trust that should have been considered. The proposed evidence
is entirely missing from the record. Interestingly, Husband
does not dispute this fact, nor does he disagree that the
absence of this evidence inhibits our ability to conduct
meaningful appellate review. In his brief, for instance, he
specifically states as follows: "The appellate tribunal
cannot evaluate this source of income to the wife or review
the propriety of the trial court conclusion that the
testamentary trust does not constitute a present interest
without the offer of proof being part of the record on
is the appellant's duty 'to prepare [a] record which
conveys a fair, accurate, and complete account of what
transpired in the trial court regarding the issues which form
the basis of the appeal.'" Jones v. LeMoyne-Owen
Coll., 308 S.W.3d 894, 902 (Tenn. Ct. App. 2009)
(quoting In re M.L.D., 182 S.W.3d 890, 894 (Tenn.
Ct. App. 2005) (citing Tenn. R. App. P. 24)). Husband had a
duty to make sure that the record on appeal would ...