Session December 13, 2016
from the Circuit Court for Hamilton County No. 13D2251 L.
Marie Williams, Judge
domestic relations action, the parties divorced following a
twenty-six-year marriage. The trial court valued the
parties' marital assets, including the husband's
medical practice, and fashioned an equal distribution. In
addition, the court awarded the wife alimony in
futuro in the amount of $5, 000 per month as well as
alimony in solido in the amount of $4, 500 per month
for ten years. The court further ordered the husband to
maintain his $1, 000, 000 life insurance policy in effect to
secure the wife's spousal support awards. The husband has
appealed. We modify the trial court's judgment to provide
for a lien on a portion of the husband's assets
sufficient to secure his alimony in solido
obligation in the amount of $540, 000, and accordingly reduce
his court-ordered obligation with regard to maintenance of a
life insurance policy in the amount of $1, 000, 000 to the
amount of $500, 000. We affirm the trial court's judgment
in all other respects. We deny the wife's request for an
award of attorney's fees on appeal.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed as Modified; Case Remanded
William H. Horton, Chattanooga, Tennessee, for the appellant,
M. Ramer, Chattanooga, Tennessee, for the appellee, Lisa
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and John W. McClarty, J.,
R. FRIERSON, II JUDGE
Factual and Procedural Background
Alex Stratienko ("Husband") filed a complaint for
divorce against Lisa Stratienko ("Wife") following
twenty-four years of marriage. Two daughters were born of the
marriage, both of whom had attained the age of majority prior
to trial. At the time of trial, Husband was a cardiologist in
Chattanooga who had started his own practice, Cardiac and
Vascular Associates, P.C. ("CVA"), in 1999. The
parties also began a business during the marriage known as
McNeal Properties, LLC ("McNeal"), which
constructed and manages the office building housing CVA and
other professional practices.
the parties' marriage in 1989, Husband had completed
college and medical school and was in his third year of a
cardiology fellowship at a hospital in Virginia. Wife had
earned her Bachelor's degree and was in the process of
obtaining a Master's degree while working as a ward
secretary at the same hospital. Wife was employed outside the
home during the initial years of the marriage until the birth
of the parties' eldest daughter in 1992. By that time,
the parties had moved to Pennsylvania to reside near
Husband's aging parents, for whom Wife helped provide
care. Wife explained that Husband's father was diagnosed
with Alzheimer's Disease and could no longer drive and
that Husband's mother had never driven. Therefore, Wife
transported the couple to doctor's appointments and
provided other care.
1993, the parties, along with Husband's parents,
relocated to Chattanooga, where Husband began employment with
the Chattanooga Heart Institute. The parties' younger
daughter was born in 1996. Wife served as a stay-at-home
mother for the children for several years while Husband
worked in the medical practice. Husband left his employment
with Chattanooga Heart Institute in 1998 and was later sued
by the practice regarding a non-compete agreement.
1999, the parties began CVA. Husband acknowledged at trial
that Wife assisted him with CVA's business operations
during the early years while he worked an arduous schedule.
Wife described this period as "busy" in that
Husband's father was extremely ill, Husband was working
more and thus less involved at home, and Wife was providing
care for the children and Husband's parents while helping
Husband with the practice. Wife testified that she performed
duties such as supervising staff, making deposits, filing
charts, designing and decorating the office, interacting with
CVA's accountant, managing the health insurance and
retirement plans, and marketing the practice. Husband worked
sixty to eighty hours per week at CVA. He also taught
continuing education classes for other physicians, for which
Wife designed and printed materials and advertising, managed
hotel and catering arrangements, and maintained an
accounting. Wife was not compensated for her work.
to Wife, when Husband began his employment through CVA, his
income increased tremendously. In 2000 or 2001, the parties
built an approximately 5, 000-square-foot home on Lookout
Mountain. Both were involved in the design and construction
of the home. When Wife's father passed away in 2002, Wife
inherited one-third of his 1.3-million-dollar estate. From
this inheritance, Wife deposited cash into the parties'
joint account and also made deposits into the children's
this approximate timeframe, the parties, with the assistance
of a friend named Oscar Brock, located a lot near all three
Chattanooga hospitals, upon which they endeavored to
construct a commercial building to accommodate CVA and other
medical tenants. Husband, Wife, and Mr. Brock formed McNeal
and, through the company, purchased the parcel and built a
commercial building thereon. Wife testified that she and Mr.
Brock met with architects and designed the facility. Wife
further related that she worked closely with the builder and
selected décor and fixtures. After CVA moved to this
new location, Wife continued to perform work for CVA without
compensation. According to Wife, she assumed some duties of a
practice manager, often working forty or more hours per week.
She also performed various responsibilities for McNeal,
including designing and marketing the office space, creating
a brochure, and procuring tenants. Wife likewise received no
compensation for her work for McNeal.
2003, Husband became enmeshed in litigation with Erlanger
Hospital regarding his hospital privileges. Wife testified
that she "stood in" for Husband during depositions
and performed work relevant to the case so that Husband could
continue to concentrate on his medical practice. According to
Husband, Wife "spearheaded" his defense, spending
tremendous amounts of time on the litigation. Husband also
related that the proceedings cost them hundreds of thousands
of dollars through the years, which proved difficult on their
marriage, the children, and their quality of life. Wife
opined that litigation expenses actually totaled
approximately three million dollars.
parties appear to agree that their marriage began to
deteriorate during this time, although their opinions differ
regarding the reasons. Their discord reached a zenith around
Christmas 2011, when Wife claimed Husband became verbally
abusive toward their eldest daughter and physically abusive
toward Wife. The parties separated shortly thereafter, with
Wife and the children remaining in the marital residence and
Husband moving to a rental property. Husband admitted that
following his departure, he removed $375, 000 from the
parties' joint checking account, leaving a balance of $5,
000 for Wife's use. Husband did not dispute Wife's
testimony that he informed Wife he would thereafter provide
her an "allowance" in the amount of $5, 000 per
month. Husband asserted that this amount was commensurate
with their pre-separation expenses so long as he continued to
pay the taxes and insurance on the marital residence. Wife
explained that Husband subsequently provided her with $5, 000
per month for the first eight months of 2012 and then stopped
sending her money altogether until the trial court ordered
him to pay temporary alimony beginning in February 2014.
According to Wife, because she had no other source of income,
she was forced to liquidate her separate, inherited assets
and to charge expenses on her credit cards in order to defray
her living expenses and legal fees during that time.
2012, Mr. Brock instituted an action against Husband and Wife
upon being "excluded" from McNeal by the parties
due to his failure to meet a capital call. Husband filed the
instant divorce action in November 2013. By the time of
trial, the parties remained involved in litigation with Mr.
Brock to determine their respective ownership interests in
December 26, 2013, Wife filed a motion in the case at bar
seeking an award of alimony and child support pendente
lite. The trial court entered a temporary order on
January 17, 2014, directing the parties to participate in
mediation and ordering Husband to pay temporary spousal
support in the amount of $20, 000 per month. The court
conducted a hearing regarding temporary alimony in April
2014, subsequently ruling that Husband would pay Wife $18,
000 per month pending trial. Wife was ordered to pay the
taxes and insurance related to the marital residence.
in this litigation, the parties reached an agreement
regarding certain issues, including that (1) Husband could
expend monies to purchase a condominium for his own use, (2)
Husband would continue to provide health and dental insurance
coverage for Wife and the remaining minor child pending
trial, (3) Husband would provide Wife with $45, 000 to pay
toward her attorney's fees, (4) Husband would continue
paying temporary alimony of $18, 000 per month, and (5) Wife
would have unfettered access to the McNeal business records.
An acrimonious environment intensified through the remainder
of the proceedings, however, as each party filed numerous
motions for relief, including several motions alleging
contemptuous conduct by the opposing party and motions
seeking sanctions. The trial court conducted a bench trial on
June 2 and 3, 2014. At the conclusion of trial, Wife's
counsel was afforded additional time to file the deposition
of an asset valuation expert. On April 13, 2015, the court
awarded Wife an additional $48, 000 toward her legal
expenses. In its order, the court noted that the parties had
agreed to initiate the process of placing the marital
residence on the market for sale.
trial court issued a memorandum opinion on December 8, 2015.
Noting that the parties had been married for twenty-six
years, the court declared the parties divorced pursuant to
Tennessee Code Annotated § 36-4-129. The court
determined that both parties had credibility issues
"because of the drive of each to accomplish a specific
result." In support, the court stated: "While this
is typical of many parties in a contested divorce, the
intellectual capacity of these parties exacerbates the
regard to the statutory factors relative to an equitable
distribution of property, the trial court found that both
parties made equal contributions to the marriage, financial
and otherwise. Although Husband asserted that Wife wasted
money and overspent following the parties' separation,
the court found that Wife's spending was consistent with
the lifestyle established during the marriage. The court also
noted that despite Husband's contention that Wife
"wasted" money on litigation, "[t]he Court
finds it disingenuous of [Husband] to criticize [Wife's]
involvement in litigation and the expense incident thereto
when his litigation history is comparable." The court
also determined that Wife had contributed a portion of her
inherited assets to the parties' joint estate. The court
concluded that Wife had not dissipated marital assets.
demonstrated by the proof, both parties were in good physical
and mental health and were of comparable ages, with Husband
sixty-two years of age and Wife fifty-eight years of age at
the time of trial. The trial court determined that Husband
possessed "vastly" greater vocational skills,
employability, and earning capacity than Wife. The court also
noted that although neither party contributed to the
education of the other, Wife had relocated several times to
support Husband's career and care for his parents.
an equitable distribution, the trial court attempted to
fashion a division of marital property that was largely
equal. Specifically, the court ordered that the marital
residence be sold and the proceeds divided equally. Wife was
awarded the parties' partial ownership interest in a
condominium in South Carolina, which the court valued at
$450, 000. Husband was awarded a condominium purchased by the
parties for Husband's mother. Various financial accounts
and stocks were divided equally. Husband was awarded CVA at a
value of $245, 000. Due to the pending litigation regarding
ownership of McNeal, the court declined to determine a value
concerning that asset. Instead, Husband was ordered to
transfer to Wife a sufficient interest in McNeal such that
her ownership therein would equal that of Husband and CVA.
The court ultimately awarded Wife a payment of $259, 406 in
cash in order to equalize the marital property distribution.
reference to Wife's claim for spousal support, the trial
court determined that alimony was appropriate because Husband
had demonstrated an ability to pay and Wife had proven (with
Husband conceding) that she manifested a reasonable level of
need. The court found that the post-divorce standard of
living expected to be available to Husband would be
substantially greater than that expected to be available to
Wife in the absence of alimony. Because neither
rehabilitative nor transitional alimony would accomplish the
objective of providing Wife a comparable standard of living
to that enjoyed during the marriage, the court determined
that long-term alimony was appropriate.
the appropriate amount of an alimony award, the trial court
calculated Wife's reasonable needs post-divorce to be
$15, 500 per month. The court deducted Wife's anticipated
income from investments of approximately $5, 760 per month,
establishing a remaining need of approximately $9, 740 per
month. As a result, the court awarded Wife alimony in
futuro in the amount of $5, 000 per month plus alimony
in solido of $4, 500 per month for ten years. With
regard to the alimony in solido award, the court
determined that Husband's greater income and ability to
accumulate assets would enable him to retire early, with the
court further opining that "his animosity towards [Wife]
makes that possibility more probable." The court also
ordered Husband to maintain his $1, 000, 000 life insurance
policy to secure Wife's alimony awards.
Husband had deducted sums from his alimony pendente
lite payments despite previously being directed not to
do so, the court specifically found such conduct to be
contemptuous. The court also determined that Wife's needs
preceding the award of assets from the court's equitable
distribution exceeded her needs post-divorce, such that the
court declined Husband's request to retroactively modify
the temporary alimony. The court also declined to award
attorney's fees to either party, concluding that each had
the ability to pay his or her own fees. The court entered a
final order on December 18, 2015, incorporating its written
parties filed motions seeking relief pursuant to Tennessee
Rule of Civil Procedure 59, in addition to numerous other
motions regarding enforcement of the trial court's
adjudication. The trial court denied the Rule 59 motions,
except to modify the equalizing payment owed by Husband by
deducting a previously ordered $50, 000 payment of
attorney's fees to Wife. Husband timely filed the instant
presents the following issues for our review, which we have
1. Whether the trial court erred in its determination that
Husband should pay Wife temporary alimony in an amount that
exceeded the parties' pre-separation standard of living
and included expenses for the children.
2. Whether the trial court erred in its determination of the
nature and amount of alimony in futuro and in
solido awarded to Wife.
3. Whether the trial court erred by requiring Husband to
maintain his $1, 000, 000 life insurance policy to secure his
alimony obligations to Wife.
4. Whether the trial court erred in its valuation and
allocation of marital assets and debts.
5. Whether the trial court erred by awarding to Wife an equal
interest in the governing rights of McNeal when the parties
demonstrated a history of discord regarding business
6. Whether the trial court erred by allowing Wife to remain
as sole custodian of the children's educational funds.
presents the following additional issues for review, which we
have also restated slightly:
7. Whether the trial court erred by declining to award to
Wife her attendant attorney's fees and declining to
assess fines against Husband after finding him in contempt.
8. Whether the trial court erred by declining to award
additional attorney's fees to Wife because Husband's
litigation strategy was abusive.
9. Whether Wife should receive an award of attorney's
fees on appeal.
Standard of Review
case involving the proper classification and distribution of
assets incident to a divorce, our Supreme Court has
elucidated the applicable standard of appellate review as
This Court gives great weight to the decisions of the trial
court in dividing marital assets and "we are disinclined
to disturb the trial court's decision unless the
distribution lacks proper evidentiary support or results in
some error of law or misapplication of statutory requirements
and procedures." Herrera v. Herrera, 944 S.W.2d
379, 389 (Tenn. Ct. App. 1996). As such, when dealing with
the trial court's findings of fact, we review the record
de novo with a presumption of correctness, and we must honor
those findings unless there is evidence which preponderates
to the contrary. Tenn. R. App. P. 13(d); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Because trial courts are in a far better position than this
Court to observe the demeanor of the witnesses, the weight,
faith, and credit to be given witnesses' testimony lies
in the first instance with the trial court. Roberts v.
Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991).
Consequently, where issues of credibility and weight of
testimony are involved, this Court will accord considerable
deference to the trial court's factual findings. In
re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007)
(citing Seals v. England/Corsair Upholstery Mfg.
Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial
court's conclusions of law, however, are accorded no
presumption of correctness. Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).
Questions relating to the classification of assets as marital
or separate are questions of fact. Bilyeu v. Bilyeu,
196 S.W.3d 131, 135 (Tenn. Ct. App. 2005).
as this Court has previously held:
Because Tennessee is a "dual property" state, a
trial court must identify all of the assets possessed by the
divorcing parties as either separate property or marital
property before equitably dividing the marital estate.
Separate property is not subject to division. In contrast,
Tenn. Code Ann. § 36-4-121(c) outlines the relevant
factors that a court must consider when equitably dividing
the marital property without regard to fault on the part of
either party. An equitable division of marital property is
not necessarily an equal division, and § 36-4-121(a)(1)
only requires an equitable division.
McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL
1526140, at *3-4 (Tenn. Ct. App. Apr. 16, 2010) (internal
citations omitted) (emphasis in original). See also Manis
v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001)
(holding that appellate courts reviewing a distribution of
marital property "ordinarily defer to the trial
judge's decision unless it is inconsistent with the
factors in Tenn. Code Ann. § 36-4-121(c) or is not
supported by a preponderance of the evidence.").
alimony, our Supreme Court has "repeatedly and recently
observ[ed] that trial courts have broad discretion to
determine whether spousal support is needed and, if so, the
nature, amount, and duration of the award." See
Gonsewski v. Gonsewski, 3 ...