Session: June 27, 2017
Appeal from the General Sessions Court for Hardin County No.
GS5446 Larry McKenzie, Judge, Sitting by Interchange
an appeal from a divorce case dissolving a long-term marriage
with two minor children. Following a four and one-half day
trial, the court awarded Wife a divorce, designated Husband
as the primary residential parent of the parties'
children, distributed the marital property, awarded Wife
rehabilitative alimony, and denied Wife's request for
attorney's fees. Wife appeals the designation of Husband
as primary residential parent, the value and division of
certain items within the marital estate, the court's
decision to award her rehabilitative alimony rather than
alimony in futuro, and the denial of her request for
attorney's fees. We vacate the trial court's order
regarding retroactive child support and remand the issue for
further proceedings consistent with this opinion. We affirm
the remainder of the judgment of the trial court. We deny
Wife's request for attorney's fees incurred on
R. App. P. 3 Appeal as of Right; Judgment of the General
Sessions Court Vacated in part, Affirmed in part, and
Lynn Wood, Adamsville, Tennessee, for the appellant, Sonja
Michael Hagenbrok and Katherine Parrish Hagenbrok, Savannah,
Tennessee, for the appellee, Stewart Ashley Williams.
Brandon O. Gibson, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and W. Neal McBrayer,
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
Broyles Williams ("Wife") and Stewart Ashley
Williams ("Husband") married on May 24, 1996.
During the course of the marriage, the parties had four
children, two of whom were minors at the time of trial (the
"Children"). During the marriage, Husband worked as
a general manager at a car dealership. Wife is a registered
nurse and was employed off and on throughout the marriage,
both full and part-time. Wife originally filed a complaint
for divorce against Husband in 2002, but the parties then
reconciled for more than ten years. Apparently unaware that
Wife's 2002 complaint for divorce had never been
dismissed, Husband filed for divorce from Wife under a new
docket number in 2013. The trial court dismissed
Husband's complaint, and the parties proceeded to
litigate this divorce pursuant to Wife's original
night in October of 2012, there was an altercation between
the parties, and Wife's leg was broken. Husband and Wife
have very different recollections of what led to Wife's
injury. Wife testified that Husband violently and criminally
assaulted her that night, which caused grievous injury to her
leg. Husband testified that Wife was actually the aggressor
and that she injured her leg while she was pursuing him and
she tripped and fell. The trial court eventually resolved
this issue in favor of Husband, finding that there was not
sufficient evidence to support Wife's allegation that
Husband intentionally injured her. Wife is currently
receiving social security disability benefits as a result of
the injury to her leg and various psychological problems.
to the start of the divorce trial, the court heard testimony
from the parties' son, then 13 years old, and their
daughter, then 12 years old, regarding their preference of
with which parent they wanted to live. Both children
expressed a desire to live with their father.
case was tried over the course of four and one-half days and
included the testimony of 14 witnesses and the introduction
of 77 exhibits. The issues before the court at trial were (1)
which party was entitled to a divorce; (2) the entry of a
permanent parenting plan; (3) division of marital property
and marital debt; (4) Wife's request for alimony; and (5)
Wife's request for attorney's fees. The trial court
issued a written ruling on February 16, 2016. In its written
ruling, the court held that Wife was entitled to a divorce
because Husband was continuously absent from the home and
"gave up on his marriage." The court determined
that Husband should be the Children's primary residential
parent. The court also divided the marital assets and debt,
awarded Wife rehabilitative alimony for three years, and
denied Wife's request for attorney's fees.
court entered a final judgment on March 21, 2016, which
incorporated by reference its written rulings. The final
judgment also stated that "requests by either party for
retroactive support are denied." The court
simultaneously entered a permanent parenting plan consistent
with its ruling. The permanent parenting plan designates
Husband as the Children's primary residential parent,
giving Husband 275 days of parenting time and Wife 90 days.
In the parenting plan, the court specifically stated that
"[t]he custody preference of the children has been a
significant factor in preparing this parenting plan."
Regarding child support, the trial court held that Wife
should not pay child support at this time because she is
"presently disabled and drawing social security
disability." The court did, however, assign Father as
the payee for the Children's social security payments and
gave Wife credit for said payments. Again, the trial court
declined to calculate retroactive child support for either
review of the merits of this appeal has been hindered by
Wife's failure to provide a proper statement of the
issues presented on appeal as required by Rule 27(a)(4) of
the Tennessee Rules of Appellate Procedure. In his brief,
Husband presented a statement of what he considered to be
Wife's issues for our review "based on the arguments
raised in [Wife's] brief." Despite the deficiencies
in Wife's brief, we exercise our discretion to move
forward with the issues we have gleaned from Wife's
arguments in her brief and that Husband has identified for
our review on appeal. We have restated five issues before us
1. Whether the trial court erred in designating Husband as
the Children's primary residential parent?
2. Whether the trial court erred in declining to award
retroactive child support to Wife?
3. Whether the trial court erred in valuing certain marital
assets and dividing the marital estate?
4. Whether the trial court erred in refusing to award Wife
alimony in futuro?
5. Whether the trial court erred in refusing to award
attorney's fees to Wife?
Standard of Review
case was tried by the trial court without a jury. We
therefore review the trial court's findings of fact
de novo with a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. 13(d);
Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn.
2013). 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.
Designation of Primary Residential Parent
challenges the trial court's decision to designate
Husband as the Children's primary residential parent.
Matters of custody and visitation are generally within the
broad discretion of the trial court. Melvin v.
Melvin, 415 S.W.3d 847, 850-51 (Tenn. Ct. App. 2011)
(citing Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001); Smallwood v. Mann, 205 S.W.3d 358, 361
(Tenn. 2006)). This is because such decisions often hinge on
subtle factors, such as the parents' demeanor and
credibility during proceedings. Rountree v.
Rountree, 369 S.W.3d 122, 129 (Tenn. Ct. App. 2012).
However, a trial judge's discretion when determining the
details of custody and visitation must be based on evidence
and applicable rules of law. Hogue v. Hogue, 147
S.W.3d 245, 251 (Tenn. Ct. App. 2004). A trial court abuses
the discretion afforded to it only when it applies an
incorrect legal standard or makes a decision that is against
logic or reasoning causing an injustice to the complaining
party. Eldridge, 42 S.W.3d at 85.
Tennessee Code Annotated section 36-6-406
first contends that the trial court erred in refusing to
apply Tennessee Code Annotated section 36-6-406(b) to this
case based on her allegations that Husband physically abused
her. Section 406 sets forth circumstances that warrant
imposing severe restrictions on a parent's visitation
with their children. See Tenn. Code Ann. §
36-6-406. In her brief on appeal, Wife specifically cites to
subsection (b) of this statute, which states that a
"parent's residential time with the child shall be
limited if it is determined by the court . . . that the
parent resides with a person who has engaged in physical
or sexual abuse." Tenn. Code Ann. § 36-6-406(b).
However, Wife does not appear to have ever alleged that
Husband resides with anyone who has abused another person.
Rather, Wife's contention is that "Husband's act
of kicking Wife's leg undoubtedly fits the definition of
abuse, " which should make section 406 applicable to
restrict Husband's parenting time. Based on Wife's
argument, we assume that the portion of section 406 to which
Wife is actually referring is section 406(a)(2), which
requires a parent's residential parenting time to be
limited if that parent has engaged in physical, sexual, or
emotional abuse of the other parent, child, or another person
living with that child. Tenn. Code Ann. §
points to the incident on October 12, 2012 that resulted in
the injury to her leg to support her allegation that she was
physically abused by Husband. Wife acknowledges, however,
that the "trial court discussed and rejected Wife's
claim of abuse by Husband." Whether Husband was actually
responsible for Wife's injuries to her leg was a hotly
debated issue throughout the trial. The trial court heard
testimony from the parties and others regarding what happened
that evening and ultimately concluded "[t]here is simply
not enough evidence to support an intentional injury caused
[to Wife] by Husband." In support of this determination,
the trial court noted that Wife never told anyone about the
alleged abuse, Husband had no history of physical abuse, Wife
allowed Husband to move back into the marital home, and the
record is devoid of any evidence that Wife was frightened of
Husband. After reviewing the record, we conclude that the
evidence does not preponderate against the trial court's
finding against Wife's allegation of physical abuse, and
accordingly we discern no error in the trial court's
failure to apply Tennessee Code Annotated section 36-6-406
when fashioning a permanent parenting plan in this case.
Tennessee Code Annotated ...