Session February 22, 2018
from the Circuit Court for Hamilton County No. 12D184 L.
Marie Williams, Judge
divorce action presenting issues concerning the
classification and distribution of the parties' assets,
the trial court determined that an oil and gas investment
purchased during the marriage was the wife's separate
property, as was her engagement ring. The trial court
fashioned an equitable distribution of the parties'
marital property and debts and denied the wife's claim
for alimony. In doing so, the trial court excluded any
consideration of assets formerly owned by the parties that
were held by a trust at the time of trial. The husband has
appealed. Discerning no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Stephen S. Duggins, Chattanooga, Tennessee, for the
appellant, John Disterdick.
J. Bott, Chattanooga, Tennessee, for the appellee, Desiree
R. Frierson, II, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., and John W. McClarty, JJ.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
appeal involves the trial court's distribution of marital
assets and debts as a result of the parties' divorce. The
plaintiff, Desiree Disterdick ("Wife"), filed a
complaint for divorce in the Hamilton County Circuit Court
("trial court") on January 17, 2012. The parties
were married in 1986 and have five children of the marriage.
In addition, Husband had one child from a prior
relationship. Wife alleged that she and the defendant,
John Disterdick ("Husband"), were experiencing
irreconcilable differences or, in the alternative, that
Husband was guilty of inappropriate marital conduct. Wife
sought, inter alia, an award of alimony as well as
the trial court's equitable distribution of the
parties' marital estate.
February 15, 2012, Husband moved the trial court for an order
directing Wife to disburse $5, 000.00 to him from a trust
fund to enable Husband to retain an attorney. Husband
asserted that Wife and her mother were the trustees of the
fund, of which Husband and Wife were equal beneficiaries.
According to Husband, Wife had recently refused to deposit
his share of the trust income into their joint account.
Husband claimed that his only regular monthly income was $1,
525.00 in Social Security benefits; $198.00 from the Screen
Actors' Guild; and approximately $400.00 in sales
commissions. On March 9, 2012, the trial court entered an
order directing Wife to pay $2, 500.00 from marital funds to
Husband's attorney. The court noted that at the final
hearing, the court would consider the amounts paid to each
party's attorney and the source of those funds when
distributing the parties' marital property.
10, 2012, Husband filed a motion seeking to replace the
trustee of the Toluca Park Square Trust ("the
Trust") and to transfer control of the Trust and another
investment, the Soladino investment ("Soladino"),
to an independent third party. Husband asserted that he had
originally established the Trust from his separate,
premarital assets in 1989. Husband claimed that he had also
"located, initiated and funded" Soladino, which was
an oil and gas investment. According to Husband, although
Wife and her mother were named as the trustees of the Trust
several years prior, he had historically managed the affairs
of the Trust. Husband also claimed that he primarily had
managed the business of Soladino, despite the fact that it
was held in Wife's name. Husband asserted that when Wife
decided to file for divorce, she prevented Husband from
continuing to manage these investments and refused to
distribute Husband's portion of the income from these
investments to him. Husband alleged that Wife had also
ignored tax responsibilities and other obligations with
respect to these assets. Husband requested that the court
transfer control of these investments to an independent third
also filed an answer and counterclaim on May 17, 2012,
reiterating his position concerning the Trust and Soladino.
Husband asserted that he was seventy years of age and
retired, with little income independent of these investments.
Husband again asked the trial court to transfer
administration of the Trust and Soladino to a third party and
to consider Wife's dissipation of these assets in its
ultimate distribution of property.
5, 2012, Judge Jeffrey Hollingsworth entered an order
recusing himself from this matter. Husband subsequently filed
a motion seeking alimony pendente lite on June 28,
2012. In this motion, Husband stated that such alimony might
be unnecessary if the trial court granted his motion
regarding transfer of the administration of the Trust and
Soladino. Husband filed a statement of income and expenses,
demonstrating that although his monthly expenses averaged $3,
620.00, his total monthly income was only $2, 191.00.
February 7, 2013, Husband filed a renewed motion seeking to
replace Wife as the trustee of the Trust. In this motion,
Husband stated that the parties had reached a temporary
resolution of this matter but that Wife refused to authorize
her attorney to sign the resultant order. A subsequent
mediation was attempted on April 3, 2013, with no settlement
achieved. Thereafter, on April 4, 2013, Husband filed yet
another motion seeking Wife's replacement as trustee of
the Trust as well as an award of alimony pendente
filed a subsequent motion on August 15, 2013, seeking the
trial court's approval regarding a pending contract for
sale of the marital residence. The court approved the sale of
the marital residence in an order dated October 14, 2013.
Relative thereto, the court directed that certain debts would
be paid from the proceeds of the sale of the home, with the
remaining net proceeds to be deposited into the registry of
February 18, 2014, Husband filed a motion requesting that the
trial court direct Wife to resume paying Husband's
automobile insurance, as well as the automobile insurance for
the parties' adult children, as she had in the past.
Husband asserted that Wife had listed this expense on her
statement of expenses and relied upon same as a basis for
maintaining control over Soladino. Husband also alleged that
Wife had ceased paying the mortgage payments on the
parties' parcels of unimproved real property known as the
"Shelter Cove lots, " such that this property was
in danger of foreclosure. Husband further sought an award of
sanctions against Wife.
March 27, 2014, the trial court, with Judge L. Marie Williams
now presiding, entered an order directing that $2, 000.00
being held in escrow (as a result of a prospective buyer
failing to close the sale of the marital residence) be
applied toward the overdue mortgage payments for the Shelter
Cove lots. The court also awarded a sanction of $1, 000.00 to
be charged against Wife at the time of the final
judgment's entry. On March 17, 2016, Wife filed a motion
seeking to withdraw funds for payment of fees and
improvements related to the Shelter Cove lots from the monies
on deposit with the court from the sale of the marital
residence. The court granted this motion, noting the
parties' agreement thereto, by order dated March 31,
April 28, 2016, Wife filed a motion, pursuant to Tennessee
Rule of Civil Procedure 12.03, seeking judgment on the
pleadings concerning issues related to the Trust. Wife
asserted that the Trust was the owner of the Trust assets
while Husband and Wife were merely income beneficiaries. Wife
further averred that because the parties no longer owned the
Trust corpus, and because the Trust was not a party to these
proceedings, the trial court could neither divide the Trust
property nor in any way reform the Trust as Husband sought in
his counterclaim. The trial court subsequently granted this
motion by order dated May 27, 2016.
24, 2016, Wife filed an income and expense statement,
claiming monthly income of $2, 500, 00 and monthly expenses
of $4, 393.00, resulting in a monthly shortfall of $1,
893.00. Wife also filed an asset and liability statement
along with her proposed division of marital assets. On her
asset statement, Wife listed "Soladino Energy
Partners" as her separate property, valuing same at $25,
000.00. Husband filed an updated income and expense
statement, demonstrating that he had sufficient monthly
income to pay his current expenses of $4, 634.00 with no
a continuance of the parties' trial date, Wife filed a
motion for contempt on July 22, 2016, alleging that Husband
had encumbered the parties' Porsche automobile in
violation of the statutory injunction. On August 4, 2016,
Wife filed a motion requesting that the trial court require
Husband to make the payments for the Shelter Cove lots
pending trial. Wife alleged that she had been making those
payments from her separate funds. The court entered an order
on August 17, 2016, requiring Husband to pay the respective
lot payments for August and September 2016.
parties subsequently filed proposed asset distributions. Wife
again valued Soladino at $25, 000.00 and identified the asset
as her separate property. Husband listed this asset as
marital property valued at $250, 000.00.
trial court conducted a bench trial on October 4, 2016,
regarding the issues of property classification and
distribution, Wife's claim for alimony, and Wife's
allegation of contempt. The court found that the parties had
been married since 1986 and had five adult children. The
court noted that Husband was born in 1942 and that Wife was
born in 1960. The court further noted that prior to the
marriage, Wife acquired an associate degree and earned income
from beauty pageants and public appearances. At the time the
parties were married, Wife owned a bank account containing
$30, 000.00 and had invested in certain stock. During the
marriage, Wife completed a bachelor's degree in finance.
The court found that Husband was employed in the film
industry prior to the marriage. At the time of trial, Husband
was receiving social security benefits of $1, 595.00 per
According to the trial court's findings, the parties
experienced "many interpersonal difficulties throughout
most of the marriage with evidence of physical and emotional
abuse by the Husband against the Wife. However, there is
evidence to establish that he 'mellowed out' in the
last ten years or so." The court noted that the downturn
in the economy, specifically the oil industry, had brought
the parties to divorce. The court further found that the
parties depended on the income derived from Soladino, which
had recently lost most of its income-producing capability due
to falling oil prices. Therefore, the parties could no longer
afford the lifestyle to which they had become accustomed. The
court also addressed the fact that the Trust, of which the
parties were beneficiaries, was not a marital asset.
trial court explained that before the marital property could
be distributed, the property had to be properly classified.
The court found that the evidence "overwhelmingly"
established that Soladino was Wife's separate asset. The
court also found that the value of Soladino had decreased
substantially, such that it should be valued at $42, 000.00.
The court determined that Wife's jewelry, an art print,
and a fur coat were also her separate property and that
certain items of personalty were Husband's separate
property. The remaining items of property were found to be
marital and were distributed as follows:
Asset: Proceeds from sale of marital
Awarded to Wife: $24, 541.66
Awarded to Husband:
Shelter Cove lots
Wife's Regions Bank account
Wife's EPB Credit Union account
Husband's EPB Credit Union account
1998 Ford van
2005 Nissan Murano
2009 Saturn Vue
Scrimshaw Whale's Tooth (2)
Antique Persian rug
Furnishings (in possession of each)
trial court then distributed the parties' marital debt as
Assessed to Wife:
Assessed to Husband:
Mortgage - Shelter Cove lots
Property tax - Shelter Cove lots
Chase credit card
Wife's attorney's fees
Husband's attorney's fees
trial court determined that Wife had paid most of the marital
expenses as well as expenses for the parties' adult
children during the pendency of the litigation. The court
also found that any amounts expended for the parties'
adult children were gifts to those children. Pursuant to an
Agreed Order entered on January 7, 2013, Wife received all of
the income from Soladino and each party received one-half of
the trust income pending trial.  The court found that Wife
had received at least $330, 993.00 in income from Soladino
during the pendency of the divorce proceedings, which income
the court determined to be Wife's separate property
because it found Soladino to be Wife's separate property.
Wife also received $137, 000.00 in marital income. During the
same time period, the court found that Husband received about
$200, 000.00 in income.
trial court also determined that Wife had utilized
approximately $42, 000.00 of her separate assets to preserve
the marital residence and Shelter Cove lots, which were
marital assets. The court thus added $40, 000.00 to the
assets allocated to Husband. Because Wife contributed marital
and separate funds to maintain the household and pay joint
bills during the pendency of the litigation, the court
expressly found the above distribution to be equitable.
regard to the statutory factors contained in Tennessee Code
Annotated § 36-4-121, the trial court found that the
parties' marriage was of substantial duration. The court
noted that it had considered and addressed the parties'
ages, health, vocational skills, and other related factors.
The court further found that Wife did have greater
employability than Husband at the time of trial and that all
remaining factors should be equally weighted.
Concerning alimony, the trial court determined that because
the parties' respective needs and abilities to pay were
substantially equal, alimony would not be awarded. The court
also declined to impose sanctions upon Husband for his
violation of the statutory injunction due to the encumbrance
placed on the Porsche automobile.
January 13, 2017, Husband filed a motion seeking additional
findings and/or alteration of the trial court's judgment,
arguing that the court had failed to address the matter of
the parties' boat as well as additional loans listed on
Husband's liability statement. Five days later, the trial
court entered a "Final Decree, " incorporating its
earlier order and declining to address Husband's motion.
On February 9, 2017, Wife filed a motion to alter or amend,
asserting that the trial court should (1) require Husband to
take any action necessary to remove Wife from the liability
associated with the Shelter Cove lots, (2) require Husband to
have the lien removed from the Porsche, (3) award the
parties' boat to Wife, and (4) amend the decree to
reflect that funds on deposit with the clerk's office
from the sale of the marital residence actually totaled $23,
493.40 and should be released to Wife immediately.
trial court entered an order regarding the motions on March
7, 2017, wherein it awarded the parties' boat to Wife
while requiring Husband to pay any lien he had placed
thereon. Finding that Wife had utilized her separate funds to
support the family and pay joint obligations, the court also
ordered that Husband was to be solely responsible for any
loans he owed to individuals. The court further ordered
Husband to take action to have Wife's name removed from
the debt on the Shelter Cove lots and to have the lien on the
Porsche released. The court amended the Final Decree to
reflect that Wife would receive $23, 493.40 in monies on
deposit with the court clerk's office and ordered those
funds to be released to Wife within thirty days. Husband
presents three issues for our review, which we have restated
1. Whether the trial court erred by classifying Soladino and
the diamond ring as Wife's separate property.
2. Whether the trial court erred by failing to divide the
parties' marital property equitably.
3. Whether the trial court erred by excluding any
consideration of issues related to the Trust.
presents the following additional issues, which we have also
4. Whether Husband's appeal should be dismissed for
failure to comply with Tennessee Rule of Appellate Procedure
5. Whether the trial court erred by determining that the
amounts expended by Wife for the parties' adult children
during the litigation, pursuant to the January 7, 2013 order,
were gifts to those children.
6. Whether the trial court erred by failing to award Wife
alimony in solido to reimburse her for Husband's
half of payments made ...