Session Date: January 25, 2017
from the Circuit Court for Hamilton County No. 12-D-1515 L.
Marie Williams, Judge
divorce action, the trial court valued and allocated the
parties' marital assets. The court also awarded the wife
alimony in futuro in the amount of $1, 800 per month
while awarding the wife attorney's fees as alimony in
solido in the amount of $35, 710. The husband has
appealed. Discerning no error in the trial court's
marital property division, we affirm that distribution.
Furthermore, we affirm the award of alimony in
futuro and attendant life insurance requirement. We
modify the trial court's award of attorney's fees to
the wife to the amount of $29, 060. The trial court's
judgment is affirmed in all other respects.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed as Modified; Case Remanded
Phillip C. Lawrence, Chattanooga, Tennessee, for the
appellant, Clinton Eugene Talley.
M. Ramer, Chattanooga, Tennessee, for the appellee, Carolyn
R. Frierson, II, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., J., and Frank G. Clement, Jr.,
P.J., M.S., joined.
R. FRIERSON, II, JUDGE
Factual and Procedural Background
Ann Talley ("Wife") filed a complaint for divorce
on July 27, 2012, naming Clinton Eugene Talley
("Husband") as the defendant. The parties were
married on January 18, 1986, and separated on November 1,
2012. Two children were born of the marriage, a daughter and
son, who were ages 29 and 28, respectively, by the time of
trial. Although Wife previously had filed a divorce action in
2009, that cause was dismissed when the parties reconciled.
trial court conducted a bench trial spanning two
non-consecutive days in January and March 2016. At the time
of trial, Wife was sixty-three years of age while Husband was
fifty-nine years old. Wife testified that she had been
employed with Provident Life and Accident Insurance Company
(now known as Unum) for thirty-eight years, from 1972 until
her retirement in January 2012. Wife was earning $34, 500 per
year as an administrative assistant at the time of her
retirement. According to Wife, her only education following
high school was one year of business school.
related that he possessed a bachelor's degree in
mechanical engineering from the University of Tennessee at
Chattanooga. Husband worked for various employers in that
field throughout the parties' marriage. Husband's
most recent employment was with Chicago Bridge and Iron at
its plant located in Waynesboro, Georgia. He commuted weekly
in this position, traveling to work on Sunday afternoons and
returning home on Thursdays. According to Husband, he rented
an efficiency apartment in Waynesboro during the work week.
Husband's gross annual income was approximately $74, 000
Husband reported no significant health concerns, Wife
described serious health problems which she claimed prevented
her from being employed. Wife had undergone back surgery, two
surgeries for breast cancer, and surgery for skin cancer.
Wife also suffered from ongoing problems resulting from
pulled ligaments in her leg and foot, as well as stiffness in
her neck. She had also been hospitalized on four occasions
for issues related to anxiety. Upon trial, Wife was receiving
Social Security benefits in the amount of $1, 475 per month.
Wife was also receiving retirement benefits of $804 per month
to Wife, she realized in 2009 that something in the marriage
was amiss when Husband became secretive, aloof, and cold.
Following her investigation, Wife discovered evidence that
Husband had been involved with another woman by the name of
M.C. Wife stated that Husband admitted to her that he had
bought an engagement ring for M.C. The parties' son
corroborated Wife's testimony, relating a conversation
during which Husband admitted that he had proposed to another
woman. Husband denied having a sexual relationship with M.C.
The parties eventually separated in November 2012.
the separation, Wife remained in the marital residence, which
the parties had designed and constructed in 1992. Although
title to the residence was not encumbered by a mortgage at
the time of trial, Wife had been paying various expenses
related to the home's maintenance, including taxes,
insurance, and homeowner's association dues since the
parties' separation. Wife reported that her total monthly
expenses averaged $3, 488. The parties' adult daughter,
who was attending college while working full time, was living
with Wife and paying no rent.
parties described their spending habits during the marriage
as "frugal." As a result, in addition to having
paid off the mortgage indebtedness on the marital residence,
the parties had amassed significant financial accounts during
the marriage. Despite his claimed frugality, however, the
proof demonstrated that Husband had purchased a home on
Country Village Drive in 2011, which he described as an
"investment." The purchase was without Wife's
knowledge or consent. While Husband related that M.C. and her
children lived in the home for a period of time, he claimed
that M.C. paid rent, although no rental income appeared on
the parties' income tax return for that year. Husband
admitted at trial that he lost $15, 000 to $20, 000 on the
sale of the home due to the "housing slump."
later purchased a home on Anderson Avenue without Wife's
knowledge and rented the dwelling to M.C. for several months.
Again, the parties' tax return reflected no associated
rental income. Husband asserted he was "building
equity" in the home by making a mortgage payment of $983
per month while only charging M.C. $650 per month in rent.
Eventually, Husband evicted M.C. because of excessive damage
to the home. Husband also admitted, however, that he paid
various expenses for M.C. during the parties' marriage,
including rent for two separate apartments, moving expenses,
utility and telephone expenses, Botox injections, and other
trial, the court entered an order on April 29, 2016. The
court, inter alia, granted a divorce to Wife on the
basis of Husband's inappropriate marital conduct. Having
considered the factors provided in Tennessee Code Annotated
§ 36-4-121 regarding an equitable division of marital
property, the court valued the parties' marital assets
based on the evidence and fashioned a distribution with
assets awarded to Wife valued at $542, 763 and assets awarded
to Husband worth $484, 900. The trial court then deducted
purported liabilities from Wife's award, establishing her
net asset value at $489, 338.
respect to the marital residence, the trial court noted that
both Wife and Husband presented experts who proffered
appraised values of $265, 000 and $285, 000, respectively. In
determining the value of the marital residence to be $275,
000, with consideration given for the repairs needed, the
court awarded the marital residence to Wife. Husband was
awarded the equity in the Anderson Avenue rental home. In
turn, the court valued and divided the remaining marital
assets between the parties, including the present value of
the marital portion of Wife's pension. Regarding the
credibility of the parties' testimony, the court credited
Wife's testimony while finding Husband's testimony to
be inconsistent and "in no way credible."
Wife's claim for spousal support, the trial court
determined that Husband maintained a substantially greater
ability to earn income and acquire assets because he remained
employed. The court concluded that both parties had
contributed to the marital estate while Husband was solely
responsible for dissipation of assets. The court found that
Husband's income was in excess of $6, 000 per month while
Wife only received $1, 475 monthly in Social Security
benefits and $206 monthly as the non-marital portion of her
pension. Based upon the parties' statements of
income and expenses, the court found that Wife had a need for
spousal support and Husband had the ability to pay. The court
found as well that Husband's ability to support a third
person during the marriage was evidence of his ability to pay
spousal support. Moreover, the court determined that Wife
could not be rehabilitated and that this was not an
appropriate case for transitional alimony. The court
therefore ordered Husband to pay Wife alimony in
futuro in the amount of $1, 800 per month.
Wife's reasonable attorney's fees, the trial court
ordered Husband to pay same as an award of alimony in
solido. Wife's attorney was directed to submit an
affidavit regarding attorney's fees. Finally, the court
instructed Husband to maintain life insurance in the amount
of $500, 000 for Wife's benefit in order to secure his
19, 2016, Wife filed a motion seeking approval of the amount
of her attorney's fees, supported by an affidavit from
her attorney. Husband filed a response in which he argued
that Wife's motion was insufficient. The parties
thereafter entered a stipulation regarding the total amount
of fees paid by Wife to her attorney during the pendency of
the case. This stipulation was incorporated into a final
order entered by the court on June 23, 2016, in which the
court directed Husband to pay $35, 710 toward Wife's
attorney's fees. Husband timely appealed.
presents the following issues for our review, which we have
1. Whether the trial court erred by reducing the total value
of Wife's portion of the distribution of marital assets
by an amount of unproven liabilities.
2. Whether the trial court erred by determining that Husband
dissipated marital assets in the amount of $65, 000,
subsequently increasing Husband's total value of the
distribution of marital assets by such amount.
3. Whether the trial court erred by ordering Husband to pay
alimony in futuro when the parties' adult
daughter was living with Wife.
4. Whether the trial court erred by awarding to Wife alimony
in futuro in the amount of $1, 800 per month.
5. Whether the trial court erred by requiring Husband to
maintain life insurance for the benefit of Wife in the amount
of $500, 000.
6. Whether the trial court erred by crediting the testimony
of Wife's expert rather than Husband's expert with
reference to the value of Wife's defined benefit plan.
7. Whether the trial court erred by determining the values of
certain marital assets in amounts different from that
established by undisputed testimony.
8. Whether the trial court erred by awarding to Wife
attorney's fees in the amount of $35, 710 when Wife had
paid a portion of this amount before trial and the
attorney's affidavit was insufficient to support the
9. Whether the trial court's errors warrant a new trial.
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 review as follows:
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).
Furthermore, 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). 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
This Court has previously explained with regard to valuation
The value of marital property is a fact question. Thus, a
trial court's decision with regard to the value of a
marital asset will be given great weight on appeal. In
accordance with Tenn. R. App. P. 13(d), the trial court's
decisions with regard to the valuation and distribution of
marital property will be presumed to be correct unless the
evidence preponderates otherwise.
The value of a marital asset is determined by considering all
relevant evidence regarding value. The burden is on the
parties to produce competent evidence of value, and the
parties are bound by the evidence they present. Thus the
trial court, in its discretion, is free to place a value on a
marital asset that is within the range of the evidence
Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct.
App. 1987) (internal citations omitted).
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, 350 S.W.3d 99, 105 (Tenn. 2011).
The Court further explained:
[A] trial court's decision regarding spousal support is
factually driven and involves the careful balancing of many
factors. As a result, "[a]ppellate courts are generally
disinclined to second-guess a trial judge's spousal
support decision." Kinard [v. Kinard],
986 S.W.2d [220, ] 234 [(Tenn. Ct. App. 1998)]. Rather,
"[t]he role of an appellate court in reviewing an award
of spousal support is to determine whether the trial court
applied the correct legal standard and reached a decision
that is not clearly unreasonable." Broadbent v.
Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). Appellate
courts decline to second-guess a trial court's decision
absent an abuse of discretion. An abuse of discretion occurs
when the trial court causes an injustice by applying 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.
This standard does not permit an appellate court to
substitute its judgment for that of the trial court, but
"'reflects an awareness that the decision being
reviewed involved a choice among several acceptable
alternatives, ' and thus 'envisions a less rigorous
review of the lower court's decision and a decreased
likelihood that the decision will be reversed on
appeal.'" Henderson [v. SAIA,
Inc., ], 318 S.W.3d [328, ] 335 [(Tenn. 2010)] ...