Session September 4, 2019
from the Chancery Court for Williamson County No. 44359
Deanna B. Johnson, Judge
a divorce case. For most of the parties' marriage, the
wife was a homemaker and the husband worked as a
pharmaceutical sales representative. After husband was
granted a divorce, the wife filed an appeal with this Court
raising several issues for our review. Among other things,
the wife takes issue with the trial court's
classification and division of property and its decision to
deny her alimony. For the reasons stated herein, the judgment
of the trial court is affirmed in part, reversed in part,
vacated in part, and remanded for such further proceedings as
are necessary and consistent with this Opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part; Reversed in Part; Vacated in Part and
Richter Perky, Franklin, Tennessee, for the appellant,
Reid Street, Jr., and Elizabeth A. Russell, Franklin,
Tennessee, for the appellee, Mark Erdman.
B. Goldin, J., delivered the opinion of the Court, in which
Andy D. Bennett and W. Neal McBrayer, JJ., joined.
B. GOLDIN, JUDGE
AND PROCEDURAL HISTORY
parties to this appeal, Jennifer Erdman ("Wife")
and Mark Erdman ("Husband"), married in May of
2000. Wife entered the marriage with one child from a prior
marriage, whereas Husband had never previously been married
and had no children. Over time, six children were ultimately
born of the marriage.
Wife was employed by her parents' businesses at the time
of the marriage, she stopped working in 2001 when the
parties' oldest child was born. For the majority of the
marriage, Wife served as a homemaker, although she
occasionally supplemented the family's income by
assisting with local soccer tournaments, among other
endeavors. At the time of trial in this matter, Wife had
resumed work in her family's businesses, earning a little
over $50, 000.00 per year as a result of this employment. For
his part, Husband served as the primary breadwinner during
the marriage, working as a drug sales representative for
Pfizer. In 2017, he earned approximately $190, 000.00.
litigation in this matter commenced in July 2015 when Wife
filed a complaint for divorce. Wife averred that the parties
had experienced irreconcilable differences in their marriage,
and pleading in the alternative, she accused Husband of
inappropriate marital conduct. Husband answered the complaint
in August 2015 and contemporaneously filed his own petition
for divorce. Whereas Husband agreed that the parties were
experiencing irreconcilable differences in the marriage, he
denied that he was guilty of inappropriate marital conduct.
According to Husband, Wife was the one guilty of
inappropriate marital conduct. Wife promptly denied this
allegation when she filed her answer to Husband's
counter-petition in September 2015, but, upon Husband's
filing of an amended counter-petition for divorce, she later
admitted to having committed adultery. Wife argued, however,
that the adultery was not the cause of the marriage's
demise and specifically asserted that it had taken place only
after she and the children had moved out of the marital
trial of this matter occurred over multiple dates between
June 2017 and January 2018. The proof was quite extensive and
covered several topics, including the parties' financial
details, the children's schooling arrangements, and the
children's participation in extracurricular activities.
On August 29, 2018, the trial court entered its
"Memorandum and Order," granting Husband a divorce
on the grounds of Wife's inappropriate marital conduct
and adultery. The "Memorandum and Order" was very
detailed and made a number of rulings incident to the
divorce. In addition to dividing the parties' assets, the
trial court's order denied Wife's request for alimony
and attorney's fees and granted Husband sole
decision-making authority regarding the children's
extracurricular activities. In a subsequently-entered
permanent parenting plan, Husband was charged with
responsibility for payment of the children's tuition,
uniforms, and books associated with private schooling,
whereas Wife was charged with responsibility for tutoring and
required school fees. Wife now appeals to this Court, raising
appellate brief sets out a number of issues for this
Court's consideration. In addition to raising a number of
discrete concerns with respect to the trial court's
classification, valuation, and division of the marital
estate, Wife's brief presents the following issues:
• Whether the trial court erred in failing to award Wife
• Whether the trial court erred in awarding Husband sole
decision-making authority regarding extracurricular
• Whether the trial court erred in requiring Wife to be
responsible for private school fees and tutoring costs.
• Whether the trial court erred in failing to award Wife
• Whether Wife should be awarded appellate
Husband's brief, he asks for an award of attorney's
fees and costs on appeal.
appeal follows a bench trial. Pursuant to Rule 13(d) of the
Tennessee Rules of Appellate Procedure, "review of
findings of fact by the trial court in civil actions shall be
de novo upon the record of the trial court, accompanied by a
presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise." Tenn. R.
App. P. 13(d). We review a trial court's conclusions on
questions of law de novo, but no presumption of correctness
attaches to the trial court's legal conclusions.
Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
first to Wife's various concerns pertaining to the trial
court's property classification and the division of the
marital estate. Initially, this requires us to entertain her
raised issue connected to the trial court's conclusion
that Husband had $611, 000.00 as separate property between a
401(k) and an additional retirement account. The
classification of property as marital or separate is a
significant part of divorce proceedings because
"property cannot be included in the marital estate
unless it meets the definition of 'marital property'
contained within the Tennessee Code." Bewick v.
Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544, at *7
(Tenn. Ct. App. Feb. 13, 2017).
proof at trial showed that at the time of the marriage
Husband had a 401(k) with a premarital value of $611, 000.00.
Without a doubt, this was his separate property at the time
of the marriage. The proof showed that the 401(k)'s value
decreased in the early years of the marriage due to market
forces, and testimony demonstrated that a number of loans
were taken against the 401(k) throughout the marriage to pay
marital bills. Further, the evidence demonstrated that