Recently in Contested Divorce Category


Award of Lien Against Spouse Incurred to Preserve Marital Estate Upheld in Tennessee Divorce

December 4, 2013 by The McKellar Law Firm, PLLC


In the case titled Jackson v. Cash, No. M2012-01338-COA-R3-CV Slip Copy, 2013 WL 5762354 (Tenn. Ct. App. Oct. 22, 2013) Knoxville family law attorneys learn when it is appropriate for liens to be granted in regards to a party's interest in a marital estate and what constitutes an equitable division in regards to debt accrued in maintaining a marital estate during the course of a divorce spanning over two years.

Facts
Husband and Wife married in 1998. Wife rarely worked outside of the home and Husband worked as an engineer until he changed careers and became a general contractor. The couple bought a home in Williamson County with the intention of improving the property and marketing it as a wedding venue. However, this never came to fruition, and Wife filed for divorce in October 2009. During most of the divorce process, Husband and Wife continued living together.

In May 2010 an agreed order was entered allowing Wife to borrow money to pay the mortgage, insurance, and make repairs to preserve the marital home. The order required Husband to make some of the repairs since he was a contractor. However, Husband never made them. Wife petitioned the court to allow her to hire others to do the work. The court acquiesced, and in its order advised that they would make "an equitable adjustment to compensate Wife" at a later time.

Again in September 2010, the court allowed Wife to borrow money to keep the marital home out of foreclosure. The court noted in its order that Wife would be credited for this amount in regards to her interest in the marital estate at the final hearing.

The trial for the divorce began in April 2011 and spanned ten days. During trial, Husband was ordered by the court to leave the marital residence, and Wife was granted the ability to lease the home. Prior to the final hearing, a Mr. Tucker that had done work on the estate and loaned Wife money for maintenance of the estate filed a motion to intervene alleging he was owed $240,000 for services provided and monies loaned. In his petition, he requested a lien on the marital home that would be subordinate to the existing mortgages. The court granted his petition.

The trial court found that Mr. Tucker loaned Wife $240,128 in cash, services, supplies, and payments. It awarded him a judgment against Wife for the full amount, and granted a lien on Wife's interest in the marital estate. Further, it was found that Husband never agreed to pay Mr. Tucker, and, in fact, Husband had specifically stated that he would not agree to be liable for the work Mr. Tucker did. However, because the work was done to improve/preserve the marital home for which Husband had a financial interest, the trial court found Husband to be liable to Mr. Tucker for $75,889.59 and granted a lien on Husband's interest in the marital estate. In addition to Mr. Tucker's liens, Wife was awarded a lien against Husband's interest in the marital home for her expenses maintaining it during the divorce in the amount of $100,714.69.

In June 2012, the trial court amended its memorandum and order to state that the judgment in favor of Mr. Tucker against Husband was against both Husband and Wife, jointly and severally. It also noted that the judgment against wife in favor of Mr. Tucker in the amount of $240,128.19 included the judgment against Husband. Husband appealed the decision.

Analysis and Conclusion

Husband raised the following issues on appeal: the trial court erred in awarding a judgment against him in favor or Mr. Tucker; and the trial court erred in awarding a judgment against him in favor of Wife in regard to expenses she spent on the marital estate. As there was no transcript or statement of evidence in the record for the appellate review, the facts of the case were extracted entirely from the trial court's Memorandum and Order.

In regards to the lien awarded to Mr. Tucker, the appellate court looked to Tenn. Code Ann. § 36-4-121(c) to ensure the trial court applied the correct legal standards, weighed the correct legal factors, applied the correct logic and reason, and whether the division of the marital estate, assets, and debt was equitable. Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007).

When determining if marital debt has been equitably divided, the court must consider the following factors:
• The debt's purpose
• Which party incurred the debt
• Which party(ies) benefitted from the incurred debt
• Which party is best able to repay the debt

Alford v. Alford, 120 S.W.3d 810,814 (Tenn. 2003) (citing Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989)). Per case law, marital debt is defined as "all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing." Id. at 813.

Here, the trial court found Wife incurred a debt of $240,128.19 to maintain and preserve the marital estate. Despite Husband's objections, these expenditures were approved by the trial court prior to the debt being incurred. Of the total amount of debt incurred, the trial court specifically found that $75,889.55 was used to keep the marital estate out of foreclosure, maintain homeowner's insurance, and to do maintenance. For this reason, it was found that this portion of the debt was for Husband's benefit as well. The appellate court found no evidence to dispute the trial court's findings; therefore, the trial court's ruling on Mr. Tucker's lien against Husband's interest in the marital property was affirmed for $75,889.55.

In regards to the trial court's judgment in favor of Wife for a lien against Husband's interest in the marital estate in the amount of $100,714.69, Husband argued that it was inequitable to make him liable to Wife for the full amount. He further averred that if he was liable at all, it should only be for one-half of the total debt.

Because there was no transcript or statement of evidence provided, the appellate court was unable to reweigh the equities in the matter. Manufacturers Consolidation Serv., Inc. v Rodell, 42 S.W.3d at 865. The appellate court was left with no other choice but to assume the trial court's findings were supported by the evidence and affirmed its ruling.


Recent Case Highlights Importance of Transcripts, Explains When Awards of Attorney Fees are Appropriate

November 26, 2013 by The McKellar Law Firm, PLLC

The recent case of Hunn v. Hunn, No. M2013-00860-COA-R3-CV (Nov, 25, 2013 Tenn. Ct. App.) shows Knoxville divorce attorneys when it is appropriate to award attorneys fees in a divorce action.

Facts

The parties married in 2011 and had two children. The parties attended mediation and reached an agreement. In June 2012, Father filed a Motion to Enforce the Mediated Agreement alleging Mother had refused to follow the terms and would not sign a Marital Dissolution Agreement. Mother responded alleging the mediated agreement was not in the children's best interest and requested a trial. Father then filed a motion asking to lift the restriction against his paramour which was denied and Father was ordered to immediately disclose his phone number and address to Mother. Mother then filed another motion to obtain his address, to compel his compliance and for sanctions and attorneys fees for failing to follow court orders. After a hearing, the court ordered both parties to provide complete contact information about the whereabouts of the minor children at all times and that a violation of that could result in jail time for the parties. Father then filed a Petition for Contempt. A hearing was held on Mother's Complaint for Divorce, Father's Counter-Complaint and the Contempt. The trial court made three findings: 1) the Father did not act in good faith when he entered the mediated agreement 2) Father perjured himself in court regarding where he and the children had been living and his credibility is non-existent 3) that co-parenting will be determined by the court based on statutory factors and not the mediated agreement. The divorce was granted to Mother, who was also granted primary residential parent. The contempt motion was denied. Based upon the "additional attorneys necessary to determine the whereabouts of the children" and otherwise pursue the case, the court awarded Mother her attorneys fees and court reporter fees in addition to mediation costs which totaled $11,000. Father appealed.

Analysis

Until it is signed by a judge, a mediated agreement is a contract. Under contract law, a party may be relieved of the contract if the agreement was "not the result of a good faith negotiation." In the absence of a transcript or statement of the evidence, it is unclear as to the nature of Father's misconduct. However, the Appeals Court presumed there was sufficient evidence to support the finding that Father acted in bad faith. Therefore the trial court's determination is upheld.

Regarding attorneys fees, the trial court has the power to award fees in custody or support proceedings under T.C.A. 36-5-103(c). The award of fees will not be modified unless an abuse of discretion is proven. A abuse of discretion is where a trial court applied an incorrect legal standard, reaches a decision that contravenes logic or uses reasoning that cause s injustice, or the evidence does not support the decision. Here, there is nothing in the record to indicate that the fee might be unreasonable or whether counsel for Father questioned or objected to the fees. Accordingly, there is no way to determine that an abuse of discretion occurred and the trial court is affirmed.

Additionally, because Father failed to file a transcript or statement of the evidence to support his appeal, the appellate attorneys fees are also awarded to Mother with the amount to be determined by the trial court.



Long-Term Alimony Award Upheld Despite Lack of Documentation at Trial

October 15, 2013 by The McKellar Law Firm, PLLC


In the case titled Parrish v. Parrish, No. W2013-00316-COA-R3-CV (Tenn. Ct. App. June 21, 2013), Knoxville divorce attorneys learn when 1) disadvantaged spouses are entitled to in futuro alimony and 2) awards are not solely determined by proper documentation or benefits obtained from the distribution of marital assets.

Facts
The parties of the case were married in December 1982. Husband filed for divorce in June 2010. Wife did not answer the complaint and Husband moved for a default judgment and was granted a divorce by the Chancery Court in September 2010. Wife filed a motion to set aside the divorce in October 2010 and filed a counterclaim for in futuro alimony. The court granted Wife's motion and set the original judgment aside. At that time the parties agreed on an equal division of most marital property and debt. However, a settlement could not be reached on the distribution of Husband's retirement account and alimony. The parties' pursuit of the case stalled until the court ruled that the case would be dismissed if an agreement was not reached in a timely manner. Wife filed a motion for non-dismissal and requested that alimony be granted. The Chancery Court granted the divorce and awarded Wife in futuro alimony in the amount of $850.00 per month based on the length of the marriage, physical and mental health of Wife, disparity of earning potential and education levels, and no means of feasible rehabilitation by Wife to sustain a standard of living above poverty. Husband appealed the trial court's decision on the grounds that the ruling was based on the lack of documentation substantiating Wife's inability for rehabilitation and did not consider the sizable monetary relief that was awarded to her by the distribution of marital assets.
Analysis and Conclusion
Husband averred the trial court was in error when it awarded Wife alimony in futuro. He argued that the court ruled without the proper documentation that supported the need for the specified amount and length of alimony. He also stated the lower court granted the in futuro alimony without regard to the sizable monetary relief that Wife obtained through the distribution of martial assets. The trial court based its decision on the following facts: that the parties had been married for 29 years; that the husband was gainfully employed as a skilled laborer; Wife had been a stay at home parent for the majority of the marriage; Wife, when employed outside the home, had earned a meager income; Wife suffered from physical and emotional ailments that prevented her from being employed; and by her own, undisputed testimony that she relied on the assistance of family members for housing, government food assistance and by "begging" for the basic needs of survival. Husband did not dispute any of Wife's circumstances. While important, it was not necessary for the evidence to be officially documented in order for in futuro alimony to be awarded. The undisputed testimony Wife outlined the need for the requested alimony. Husband had the ability to provide and the divorce action should not decrease Wife's standard of living. The trail court's decision was appropriate based on the individual needs and circumstances of the disadvantaged spouse under the required guidelines. The Court of Appeals held the opinion that the lower court did not err in its discretion by awarding the type or amount of alimony to Wife. Therefore, the Court of Appeals affirmed the trial court's decision.

Appreciation Due to Market Factors Not Enough to Justify Distribution of Value to Spouse in Tennessee Divorce

August 13, 2013 by The McKellar Law Firm, PLLC

In the case of Huddleston v. Huddleston, No. M2012-00851-COA-3-CV (Tenn. Ct. App July 30, 2013), a case out of Putnam County Chancery Court, Knoxville divorce attorneys learn that an increase in value of separate property during a marriage, if due to market factors only, will not justify dividing that increase between the spouses upon a divorce.

Facts: The parties married in 1996, and each brought property into the marriage. The Husband owned a farm and the Wife a house in Cookeville. Wife moved to the farm until they separated in 2010. During the marriage, the couple bought a vacant lot adjacent to the Cookeville house. Husband then quitclaimed his interest in that property to Wife, and Wife conveyed the property to her sons but retained a life estate. Wife then gave that up and the sons sold the property and the proceeds were used to purchase a life insurance policy on the Wife. In a trial in 2012, the court bisected the farm property, giving each spouse half. Wife's life insurance property was awarded solely to her. Husband appealed the classification of the increase of the value of the farm as marital property, the award of half the property to the Wife and the classification of life insurance as separate property.

Analysis:

The Farm Property: The trial court decided that this property was marital and not separate because Wife contributed to its appreciation during the marriage. T.C.A. §36-4-121 defines marital property as that which is acquired during the marriage and includes income or increase in value of separate property if the spouse substantially contributed to its preservation and appreciation. Substantial contribution can include a spouse who is a homemaker, wage earner, parent, financial manager and other factors. Separate property is defined as that owned by either spouse prior to the marriage or income/appreciation earned after the marriage from separate property, gifts, bequests, or inheritance. Here, this Farm property was acquired in 4 parcels, three prior to the marriage and one after. An appraiser concluded that the increase in value during the marriage was approximately $330,000. Here, the trial court found that the Wife maintained the home, did laundry, cleaned, cooked, gardened, landscaped, painted and decorated, helped with farm chores, maintained fencing and helped harvest crops. However, the Appellate Court concluded that these efforts did not contribute to the increase in the value of the property. Because the court failed to make a finding as to why it held that Wife did substantially contribute to the appreciation. Prior case law emphasizes that when property increases due to market factors, and not efforts of either spouse, that increase in value is not marital property. Accordingly, the trial court's award is reversed as what was given to the Wife.

Life Insurance: Husband argues that the life insurance policy was marital because even though purchased with proceeds from separate property, the policy itself was acquired during the marriage and was comingled and/or transmuted into a marital universal policy worth over $250,000. The trial court found that Husband had signed over his interest via deed of the property to Wife. Husband offered no proof or evidence to support his contention. Accordingly, the proceeds from the sale of separate property to buy the separate life insurance policy was correctly determined to be Wife's separate property, and the trial court was affirmed on this issue.


Judges Must Follow Statutory Instruction to "Maximize Co-Parenting Time" for Both Parents in Tennessee

August 7, 2013 by The McKellar Law Firm, PLLC

In the case of McDaniel v, McDaniel, No. M2012-01892-COA-R3-CV (Tenn. Ct. App. July 29, 2013) out of Rutherford County, Tennessee, Knoxville divorce attorneys learn that trial courts must maximize the co-parenting time of both parents so long as that is in the children's best interests, and a trial court's failure to do so can result in reversal and remand for determination of a new plan.

Facts: The parties married in 1994 and Mother filed for divorce in 2011. After a trial, the marital residence was awarded to Father (Father desired it and Mother could not afford it) and because of that, with all other factors being equal, Father was designated primary residential parent "PRP" with Mother having 120 days per year. Mother appealed the PRP designation and the parenting schedule.

Analysis: T.C.A. 36-6-404 and T.C.A. 36-6-106 both contain a list of factors a trial court must look at to determine (the two lists are "substantially similar"). Here, the trial court found the following:
• Both parents showed they were caring, loving, motivated and active in the children's lives
• Mother , who did not work, provided care for the children when not in school or daycare
• Mother organized the parties' finances
• Father regularly "took over" parenting duties when he came home from work, and Mother would leave and run errands for the household
• Two witnesses testified that Father was the primary caregiver
• Both parties testified it would be important for the children to remain in the marital residence
• At the time of trial, when Father was awarded the martial residence, Mother did not have alternate living arrangements but was hopeful she could obtain housing nearby.
T.C.A. 36-6-106 allows trial courts to look at the contemplated future residences of the parents as well as the factor of continuity in the children's lives. Here, continuity weighed heavily in favor of Father. Accordingly, the trial court did not err in designating Father PRP.

T.C.A. 36-6-106 also states that in light of the children's best interests, the court should implement a plan that allows each parent to have "maximum participation" in the children' s lives. However, the trial court only awarded Mother 120 days, even though Father' s proposed parenting plan gave her 159, with no explanation for why that was appropriate. Accordingly, the Appellate Court could not find that the 120 days with Mother was in the children's best interests and reversed and remand. The trial court was directed to put down a parenting schedule that maximized participation of both parents.


Father's Obligation to Pay For Private School Reversed; Award of Attorney's Fees Denied to Mother Due to Allocation of Assets

In the case titled Kraus v. Thomas, No. M2012-00877-COA-R3-CV, 2013 WL 2612458 (Tenn. Ct. App. June 7, 2013) Knoxville family lawyers learn when an upward deviation of child support is appropriate regarding educational expenses as well as what test should be applied when ordering a party to pay attorney's fees.

Facts: Husband and Wife were married for fifteen years and had four minor children ages 12, 10, 8, and 7 at the time of their divorce. In its Final Order, the trial court decided the following:

• Wife was designated the primary residential parent ("PRP") and awarded Wife 280 days of parenting time per year and Husband 85 days;
• Wife was awarded sole decision-making regarding the children's non-emergency health care and extracurricular activities and the children's education including whether they would continue to be enrolled in private school, and the parties were awarded joint decision-making regarding religious upbringing;
• Husband was ordered to pay $625 per month in child support until the youngest child finished pre-school at which time it would increase to $1,252 per month; Husband was also ordered to make an application for financial aid for the children's private schooling;
• Husband and Wife were ordered to seek financial assistance to cover further expenses for private schooling from an irrevocable trust for which Husband and the children were beneficiaries. (If the Trustee did not cover the full balance for the private schooling it was ordered that Husband pay 75% of any remaining cost or $16,875, whichever was less, per school year for the three oldest children); Wife was required to pay any additional expenses associated with private schooling over and above the court's ruling on the matter;
• Wife was awarded 60% of the marital property and Husband was ordered to pay Wife's attorney's fees of $50,000.00.

Husband appealed the trial court's ruling in regarding the expenses for private school and the award of attorney's fees to Wife.

Analysis & Conclusion: On appeal, Husband argued the trial court erred in ordering him to pay an upward deviation in child support to accommodate private school expenses and did not apply and/or consider Tennessee Child Support Guidelines in its decision on same. Father argued that the trial court's decision regarding these expenses represented more than one-fourth of his gross income.

A court may order a deviation on the amount of child support so long as the deviation complies with Child Support Guidelines and the amount of the deviation is within the scope of the court. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). However, the court must stipulate in its order the reason for the deviation and the amount the child support would have been without the deviation. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). The court must also explain how the application of the presumptive amount of child support was not appropriate in the matter, and how the deviation supports the best interests of the child(ren). Tenn. Comp. R. & Regs. 1240-2-4.07(1)(a)-(c).
When a trial court deems a deviation from the presumptive amount of child support to be appropriate, it must consider all income of the parents. It must also make a written finding that the deviation is reasonably necessary to provide for the needs of the children. Tenn. Comp. R. & Regs. 1240-2-*4-.07(2(a) (2008).

The Tennessee Child Support Guidelines specifically address extraordinary educational expenses, and allow these expenses to be added to a child support order as a deviation. However, to determine the amount of the deviation, the Guidelines provide that any "scholarships, grants, stipends, and other cost-reducing programs received by or on behalf of the child shall be considered." Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d).

The appellate court here noted that the trial court never referenced the Tennessee Child Support Guidelines in its order, only mentioning that private school was in the best interest of the children. It also found no analysis for the deviation by the trial court as is required by the Guidelines. Because of this, the appellate court had to determine if the facts supported a deviation for the extraordinary educational expense should the Trust not cover all of the private school expenses for the children.

The appellate court determined that Husband had a monthly gross income of $4,138.55 plus $1,083 in monthly IRA distributions. This made his monthly gross income $5,221.55 or $62,658.60 annually. It also factored his child support obligation of $1,252 per month ($15,024 annually), his obligation to pay life insurance premiums ($4,400 annually), his obligation to pay one-half of summer camp expenses for the children ($2,465 annually), and his obligation to pay one-half of any out-of-pocket medical expenses for the children ($600 annually). When adding these expenses together, Husband's annual obligations totaled $22,500. The court determined that Husband's potential obligation for private schooling would be $16,875 for the older three children. This would make Husband's total annual obligation $39,000 if the cost of private schooling was added. The appellate court determined this to be 74% of Husband's net income ($52,220). The Court of Appeals determined that this percentage was not appropriate and reversed the upward deviation for private schooling.

On the issue of attorney's fees, Husband argued that the trial court erred in ordering him to pay Wife's attorney's fees of $50,000 from his share of the marital property.

An award of attorney's fees is appropriate when a disadvantaged spouse's income is not sufficient to cover the costs. This type of award is treated as alimony in solido, and trial courts are given wide discretion when awarding it. When alimony issues are on appeal it must be proven that the trial court abused its discretion in its award. To prove abuse of discretion it must be shown that an incorrect legal standard was used, an illogical result was reached, there was an erroneous assessment of the evidence, or the trial court relied on reasoning that caused an injustice to a party.

During trial, it was determined that Wife did not have the income to pay for her attorney's fees; however, she was awarded 60% of the marital property including 60% of the cash proceeds from the sale of the marital home valued at $207,033.95. The appellate court also noted that Wife's income was more than Husband's. For these reasons, the appellate court found that the trial court made an erroneous assessment of the evidence and reversed the award of Wife's attorney's fees.


Rare Tennessee Case Where Primary Parent Designation is Split Between Siblings

In the case titled Maupin v. Maupin, No. E2011-01968-COA-R3-CV, 2013 WL 1803602 (Tenn. Ct. App. Apr. 29, 2013) Knoxville divorce attorneys learn in what instances the primary parent designation ("PRP") can be split between parents and siblings, whether foreclosure liability is appropriate for the spouse who was not awarded the property, and when retroactive child support is appropriate.

Facts:Husband and Wife were married in 1993 and had three (3) children who were minors at the time of the divorce. For the first five (5) years of the marriage, Husband was unemployed and helped his parents on their farm; Wife worked at a hospital and sold jewelry on the side for extra income. Wife admitted to an affair in2007 and agreed to end it to save the marriage. Husband gave up farming to spend more time with Wife, and both attended marriage counseling sessions. However, Wife continued her affair Wife filed for divorce in 2008.

After considering testimony of two psychological experts and a guardian ad litem regarding the breakdown of Father's relationship with the daughter and Mother's relationship with the couple's two sons, the trial court designated Mother the PRP for the daughter and Father the PRP for the two sons. However, the court did stipulate that there be a co-parenting schedule to facilitate shared time together for the siblings on "weekends, holidays, and other vacation periods." Mother was ordered to pay $594 per month in child support based on the court determined income of $4,902 per month for Wife and $2,360 per month for Father. Two permanent parenting plans ("PPP") (one for the daughter and one for the sons) were entered with the court that were almost identical. Both allowed the PRP 247 parenting days with the other parent receiving 118 parenting days. Both plans included a supplemental provision requiring the family to enroll in counseling.

When determining assets, trial court's typically review a schedule of assets and liabilities submitted by both parties; however, Husband never submitted this information to the court in this case. Despite lacking this information, the court awarded Husband 20% of Mother's retirement fund and made the parties equally responsible for any joint credit card balances and a timeshare that was foreclosed on. Husband was awarded the marital residence valued at $175,000 with a mortgage balance of $223,834. The court ordered Husband "solely responsible for paying the indebtedness owed with regard to the [marital residence], holding [Wife] harmless from any liability in connection therewith"; however, in its ruling the court stipulated "the parties shall be equally responsible for paying any deficiency balance due" in the event of a foreclosure.

Husband filed a motion requesting retroactive child support to the date of separation which the court granted. Wife filed a motion for contempt alleging she had received no parenting time with her sons. The court scheduled an evidentiary hearing to determine if Husband was in contempt for failure to follow the "PPP." After hearing testimony from Husband and Wife, the court determined Husband had encouraged the two sons to go with Wife for visitation, but the children did not want to go. Therefore, it was reasoned that Husband was not in contempt of the court ordered PPP. Wife appealed the trial court's decision.

Analysis and Conclusion: On appeal the court had to determine the following:

• Whether the trial court erred in ordering Wife the PRP for one minor child and ordering Husband PRP of the other two children
• Whether the trial court erred in awarding Husband the marital home with the condition he assume the mortgage while stipulating Wife would be held responsible for on-half of the debt should the home be foreclosed
• Whether the court erred in awarding Husband retroactive child support to April 2009

On the issue of PRP, Wife argued that Husband refused to encourage the two sons for which he was PRP to have a relationship with her. She averred that Husband was turning the children against her. Husband argued that Wife brought the situation on herself by having an affair. In looking at the best interests of the children and applying that standard, the appellate court determined the trial court did not err in its discretion appointing Husband the PRP of the boys considering their animosity toward Wife. However, it did modify the parenting plan to require "appropriate, professional counseling" and remanded the case back to the trial court to have a hearing to appoint a therapist to develop a counseling program and therapy sessions with the parents. Both parents and all three children were ordered to attend the counseling.

On the issue of retroactive child support, Wife averred that she contributed to providing for the children during the separation period and trial for the divorce; yet, she was not seeing her sons. Husband pointed out that the guidelines for child support state a child support award is effective as of the date of separation unless there is a reason to deviate. The appellate court agreed with Husband's argument and found no reason to deviate from the guidelines. The trial court's decision was affirmed on this issue.

In determining Wife's final argument that the trial court erred in holding her responsible for one-half of the mortgage of the martial home in the event of foreclosure while awarding Husband said home, the appellate court found the trial court's opinion to be ambiguous. Father argued the divorce left him in financial ruin; Mother argued the trial court's opinion was inconsistent as it awarded Husband the home and the mortgage, but allowed that debt to come back on her in the event of a foreclosure. From the record the appellate court found that Husband had hidden assets during the divorce trial, finding he had approximately $200,000 in martial assets of which some were gambled away. The appellate court reversed the trial court's decision, stating Wife should be held harmless from any foreclosure debt on the marital home.


Inequitable Property Division in Divorce Remedied by Motion to Alter/Amend

In the case titled Haggard v. Haggard, No. W2012-003600-COA-R3-CV, 2013 WL 2304186 (Tenn. Ct. App. May 28, 2013) Knoxville divorce attorneys learn what constitutes an equitable division of property in a divorce and when a Motion to Alter or Amend is appropriate post-judgment.

Facts: Husband and Wife were married for nine (9) years with no children. Wife filed for divorce in 2010; Husband responded with a counter-complaint. Wife entered a proposed division of marital property as an exhibit with the trial court requesting it award her a lump sum (or in monthly payments) for her marital share of the assets that she proposed be given to Husband.

The trial court took Wife's proposal under advisement. However, in its Final Decree it awarded marital assets valued at $119,847.49 (including three parcels of property) to Husband while only awarding assets valued at $16,598.01 to Wife with no mention of a monetary award for her marital share of the assets given to Husband.

Wife filed a Motion to Alter the Final Decree arguing that although she had not specifically asked for any of the property awarded to Husband she did not intend to forfeit her claim in said property. She also pointed out the proposed division of the marital property she entered with the court as an exhibit. As a remedy, Wife asked the court to award her unencumbered marital assets. Husband filed a response arguing that the division of property was equitable and no "mistake" was made in the final decree. He averred that under the Rules of Civil Procedure there were no grounds to alter or amend the final decree. The trial court stated that it misunderstood Wife's intention at trial regarding the marital assets and found the division to be inequitable. Therefore, it awarded wife a parcel of property valued at $47,000 with no debt. Husband appealed.

Analysis: On appeal the appellate court had to determine whether the trial court abused its discretion when awarding Wife additional real property, without additional proof presented, based on the trial court's misunderstanding of Wife's intention at trial in regards to marital assets.

Husband argued that the division of the marital property was equitable when factoring in the award of alimony ($450 for 24 months) and attorney's fees (approximately $5,000) awarded to Wife. Husband also pointed out that Wife had no debt. The appellate court did the math which showed Wife's total share of the marital assets as $36,297.51 once the alimony and attorney's fees were added. The court conceded that an "equitable" division of marital property does not have to balance mathematically; however, it stated that the division of assets in this case was "plainly inequitable."

Husband also argued that the trial court abused its discretion in allowing Wife's Motion to Alter or Amend. He averred that in the motion Wife spoke of her "intention" regarding the marital property which was new evidence after the final order was entered in the case. The appellate court pointed out that Husband never asked for an evidentiary hearing from the trial court on the matter.

The appellate court quoted Tennessee case law stating a Motion to Alter or Amend allows a trial court to amend a judgment to correct an error or prevent injustice to a party. Its purpose is to allow trial courts, when it has overlooked or failed to consider important matters, to fix its errors to prevent unnecessary appeals.

Conclusion: The appellate court found that the initial division of marital property was inequitable and the trial court did not abuse its discretion in allowing Wife's motion to amend. The trial court's opinion was affirmed with costs of the appeal taxed to Husband.


What's the Difference Between an Agreed and Contested Divorce in Tennessee?

Many people that call my law firm or are searching for information online have the same question - what is the difference between an Agreed and a Contested divorce action?

As a starting point, a typical "Agreed" divorce is one in which both spouses either want or are willing to agree to the divorce itself, have discussed and agreed upon a division of all assets and debts and if children are involved, they agree upon a co-parenting schedule. On the other hand, a "Contested" divorce action arises under many different scenarios. A Contested action simply means that one spouse is seeking a divorce from the Court but no predetermined agreement has been reached. Unless the spouses can agree on every single issue, a Contested divorce may be necessary. For example, a Contested divorce may arise under the following circumstances:
• One spouse cannot be located
• The parties may agree on how to divide assets and debts but not on co-parenting, or vice versa
• One spouse does not want a divorce
• The spouses cannot come to a resolution on any one single issue, such as how to divide retirement or what to do with the marital home
• One spouse is nonresponsive and refuses to discuss settlement or refuses to sign the required paperwork for an Agreed divorce

A Contested divorce is initiated by the filing of a Complaint and possibly a Proposed Parenting Plan. The Defendant then has thirty days to file an Answer and/or hire a lawyer. Once the Answer is filed, the attorneys may engage in negotiation or exchange of discovery. In a Contested action, if no settlement can be reached outside of Court, mediation is required. Mediation is an informal settlement conference where a neutral party (the mediator) facilitates settlement between the parties. If no agreement is reached, the parties will proceed with a trial. At trial, the Judge will decide upon any and all issues that the parties cannot agree upon, from the co-parenting schedule, to which party gets what furniture, to how debts will be paid.

A typical Agreed divorce only involves one lawyer, but that lawyer only represents one spouse, not both. If the other spouse desires legal advice, they must seek out their own representation. Once both spouses have signed the necessary paperwork, a Final Hearing is held where the Court declares the parties divorced.

If you have further questions, feel free to give us a call for a free phone consultation at (865) 566-0125.


One Party's Failure to Pay A Property Settlement Does Not Relieve Other Party's Child Support Obligation

In the case of Cantrell v. Cantrell, No. M2012-01847-COA-R3-CV (Tenn. Ct. App. May 23, 2013), Knoxville divorce lawyers learn that one party's failure to timely pay a property settlement does not relieve the other party's child support obligation.

Facts: The parties divorced in 2008. In 2012, Wife filed a Petition for Contempt based upon Husband's failure to comply with the terms of the divorce. Husband also had a pending Petition to Set Child Support, and the two issues were heard on the same day. The trial court ordered the following: Husband would pay to Wife $20,000 in sixty (60) days; Wife would retrieve all property within sixty (60) days and child support would be paid by Wife of $281 per month from 2008-2011. Wife appealed, arguing that she should not have been ordered to pay child support and that the trial court should have imposed further punishment on the Husband for his failure to pay.

Analysis: Wife's appeal regarding the child support rests on her assertion that she should not have had to pay support based upon fairness and the history of the case. Wife did not argue that the amount was wrongly calculated or inappropriate numbers were used in the calculation itself. Wife argued that she should not pay support because Husband failed to pay the $20,000 property settlement to her in a timely manner. The Appeals Court here finds Wife's argument lacking. The Court held that is was proper for the trial court to hear the contempt and the child support petition simultaneously, and that Husband's failure to pay the property settlement should not affect Wife's duty of support.

Regarding the issue of Husband's contempt, Wife argues additional punishment should have been handed down by the trial court in addition to requiring Husband to pay the outstanding amount in sixty (60) days. However, Wife's Petition only requested civil contempt, not criminal contempt. Civil contempt is intended to bring a party into compliance with a court order; criminal contempt is intended to punish a party for wrongdoing. Because Wife asked for civil contempt and received an order directing Husband to comply, no other action would have been proper. Therefore the trial court is affirmed.


Primary Residential Parent Determination Depends On T.C.A. 36-6-106 Factors

In the case of Wood v. Wood, No. W2012-01250-COA-R3-CV (Tenn. Ct. App. May 16, 2013), Knoxville divorce attorneys learn that trial courts determine the primary residential parent based upon the factors found in T.C.A. 36-6-106.

Facts: The parties married in 2007 and separated in 2010 after having one child together. At the trial, both alleged that the other had an alcohol abuse problem, and Mother additionally alleged that Father was guilty of physical violence as well. Father admitted his DUI conviction, other alcohol related offenses and two arrests for domestic violence that occurred during the marriage. Father alleged that the Mother admitted she had several relationships with different men and had introduced them to the minor child. At the time of trial, Mother worked from 7am to 7pm three days a week, but had a 2 hour commute. Father worked for his parents, who were also proffered as alternate caregivers. However, testimony showed that Father would sometimes leave the child in the care of his parents due to his drinking and social life. Mother also argued that the grandparents interfered with her relationship with the children. The trial court named Father the primary residential parent due to his flexible work schedule and support system. The trial court refused to impute Father's income to account for the free housing provided by his parents as Mother requested. Mother appealed.

Analysis: The Court of Appeals first turns to T.C.A. §36-6-106(a), which outlines the factors a court is supposed to use to determine the primary parent and the co-parenting schedule. Based upon those factors, the Appeals Court made the following analysis: that both parents were devoted to the child and this factor favored neither (same as the trial court); both parents were capable of providing for the child's needs and favors neither party (same as the trial court); that the continuity and stability factor favors Father, due to Mother's many other romantic relationships, Mother have relocated the child twice due to her job changes and Father having lived and worked in the same location continuously (same as the trial court); that stability of the family until also favored Father due to Mother's commute and the closeness of the paternal grandparents (same as the trial court); that the evidence of physical and emotional abuse to the child favored neither party (same as the trial court); all other factors were found to be equal or not applicable. Accordingly, the Appeals Court upheld the trial court's decision to make the Father the primary residential parent.

Next, the Court looked at whether the trial court erred in failing to impute income to Father because he received free housing. The Court found that Mother presented no evidence regarding the reasonable rental value of his home. The Court noted that even if Mother had shown the housing was a fringe benefit of Father's employment, that the Court had no way of determining from the evidence presented how much income to actually impute. Therefore, the trial court was correct in refusing to impute income to Father based upon his free housing in that the record lacked sufficient data with which to do so.


The Importance of Preserving the Record for Appeal (and the Importance of Having a Divorce Attorney)

April 28, 2013 by The McKellar Law Firm, PLLC

In Higgins v. Higgins, No. E2012-01376-COA-R3-CV (Tenn. Ct. App. April 16, 2013), Tennessee divorce attorneys learn the importance of preserving the record for appeal; if there is no record, the Court of Appeals must presume that the trial court's findings and conclusions are correct. Also, Tennessee family lawyers also learn that a party's decision to represent himself or herself pro se are not an excuse for failing to preserve the record.

The facts of the case are as follows: In 2010, Wife and Husband separated after twenty years of marriage; Wife subsequently filed for divorce. Husband was provided with an additional thirty (30) days before trial to acquire a new attorney after his former attorney withdrew from the case; however, he declined to do so, instead choosing to represent himself pro se. The parties then attended trial to address remaining issues of property division. At trial, it was clear to the trial court that the parties had similar health, financial resources, earning capacity, and ages. Also, the trial court noted that the marriage was long-term, and that the parties did not have any separate property. Accordingly, the trial court fairly equally divided the parties' property ($34,000 to Husband and $38,000 to Wife) and expressed its opinions in a memorandum opinion.

Testimony revealed that Wife's $50,000 gift and a prior sale of a residence that was in the name of both Husband and Wife was the source of funds by which the parties acquired their marital residence. The court granted this residence to Wife "subject to the first mortgage as well as two-thirds of the home equity line of credit (HELOC)," and determined that it was a marital asset. Husband was responsible for the remaining one-third of the HELOC. After trial, Wife filed a motion requesting that the court amend the memorandum opinion to elaborate on other matters; the court made amendments and entered a divorce decree and final judgment at a second hearing, which Husband declined to attend. Husband then filed a motion to amend, alleging that the court's initial memorandum opinion differed from the final decree. The trial court only made a few amendments to the final judgment. As such, Husband filed this appeal, claiming that the court improperly classified the marital residence as separate property and that the division of the marital property was inequitable because the trial court failed to account for his "substantial" debt. He also alleged that the trial court wrongfully awarded alimony to Wife.

On appeal, the Court of Appeals addressed the following issues: (1) "Did the trial court err in its classification of the parties' property and did the court err in failing to equitably divide the marital estate?" and (2) "Did the trial court err in amending the final order to include an award of alimony?"

Regarding the classification and division of property, the Court of Appeals found that the trial court properly classified the home as a marital asset and that the trial court averred that Husband did not provide evidence of his alleged debts; since Husband presented no record, the Court had no basis on which to challenge the trial court's position. Finally, the Court found that neither the trial court's memorandum opinion nor amendment reflect any alimony award; the amount was purely an attempt to allocate the mortgage debt between Husband and Wife.

The most important aspect of this case is that the Court of Appeals noted that Husband entirely failed to provide a record of trial, and that his self-representation was not an excuse for his failure to do so. The Court warned that appellants are responsible for "prepar[ing] a record which conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues which form the basis of the appeal." If they fail to do so, then the appellate court is required to "assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's findings."


Legal Father May Terminate Child Support Obligation Via Negative DNA Results

April 24, 2013 by The McKellar Law Firm, PLLC

In the case Price v. Price, No. W2012-01501-COA-R3-CV, 2013 WL 1701814 (Tenn. Ct. App., Apr. 19, 2013) Tennessee family law attorneys learn that that a "legal father" (by virtue of being named on the birth of a child during a marriage), who are later proven not to be the father's biological child, has a right to terminate a child support obligation for that child.

The facts: Husband and Wife married in 1989. From 1992 to 2005 Husband was active duty in the Navy and was stationed away from his family with occasional visits home. From 1993 to 2003, while Husband was stationed away from Wife, she had a male roommate live in the marital home with her. During this period, Wife gave birth to two (2) children. In 2001 Husband had a DNA test performed on one of the children, who was shown not to be his biological child. Husband then filed a Complaint for Divorce, but did not follow through on it and remained married. In 2011, Husband again filed a Complaint for Divorce asserting that he was not the biological father of either child born of the marriage. Wife admitted that Husband was not the father, but argued that Husband executed a "voluntary acknowledgment of paternity" for each child shortly after their births. The court requested DNA testing which confirmed that Husband was not the father of either child. Wife's defense offered proof that Husband held the children out to be his own, listed the children as dependents in his military personnel file, and lived in the marital home with Wife and Children after being relieved of active duty status from the Navy in 2005. The trial court was not persuaded by Wife's arguments in relation to the DNA test results; therefore, it granted the divorce and stipulated that no children were born of the marriage. Wife appealed.

Analysis and Conclusions: On appeal, Wife asserted that "absent an adjudicative hearing naming another man as the biological father of the children, [Husband] is the children's legal father because he was married to the biological mother of the children, who were born during the marriage." Citing In re T.K.Y., 205 S.W.3d 343 (Tenn. 2006). Wife cited Tenn. Code Ann. § 36-1-102(28)(B) for the definition of "legal parent" to include "a man who is or has been married to the biological mother of the child if the child was born during the marriage," as well as Husband's "voluntary acknowledgment of paternity" ("VAP") for each child as reasons why he should be required to pay child support for the children.

The Court of Appeals found that here, no VAP was in the record provided by Wife. The only evidence that Wife provided included birth certificates for the children listing Husband as the father. Because there was no VAP, the Wife's argument was found meritless.

On the argument Wife raised using In re T.K.Y., the Court pointed out that the case was regarding two men seeking to establish parental rights to a child in regards to a termination of parental rights proceeding, and, therefore, was the opposite of the case at bar. The Supreme Court found this argument ineffective.

In regards to the definition of "legal parent" in Temm. Code Ann. §36-1-102(28)(B), the Appeals Court found that definition to be pertinent to adoptions and termination of parental rights proceedings only and therefore inappropriate to apply to the current case.

In its final opinion on the matter, the Court of Appeals stated that Wife's argument was "swimming against the tide." It further opined that Tennessee child support laws seek to obtain child support from biological fathers and seeks to relieve putative fathers from the burden of supporting children that are not biologically theirs. The Court affirmed the trial court's decision that Husband had no legal obligation to support the children in the matter since they were proven to not biologically be his.


Material Change in Circumstance Necessary to Change Custody Arrangement; Standard for Automatic and Permissive Intervention

April 11, 2013 by The McKellar Law Firm, PLLC

In Garrett v. Garrett, No. E2012-02168-COA-R3-CV (Tenn. Ct. App. April 12, 2013), Tennessee divorce attorneys learn that courts require a material change in circumstances before modifying a permanent parenting plan; however, the material change standard is higher when a party wishes to change the designation of primary residential parent. Further, Tennessee divorce attorneys learn the terms under which a party can intervene in a pending action.

The facts: At the conclusion of a divorce action in Cumberland County, Mother was designated primary residential parent; however, Mother and Father were to share time with the children on a 50/50 basis. Mother then decided that the children should attend a different school nearer to her home. At Father's request, the trial court entered an ex parte order requiring the children to continue attending their original school. However, the local Board of Education averred that pursuant to its policy, the primary residential parent's residence determines which school a child must attend; therefore, the Board filed both a motion to intervene and motion to set aside the order. Mother felt that Father did not comply with the permanent parenting plan requirement that they make decisions jointly and therefore filed a motion to clarify the divorce decree. Father then requested to be named primary residential parent since Mother had disregarded the parenting plan by switching the children's school. After a hearing, the trial court found: (1) Mother violated the permanent parenting plan by switching the children's school; (2) legally, the Board was entitled to intervene; (3) that the children required stability; and (4) Father was designated primary residential parent as it was in the children's best interest.

The Appellate Court asserted that the issue of the Board's intervention, while not raised on appeal, was important. Essentially, if an individual wishes to automatically intervene in an action, he or she is required to establish: (1) that he or she requested to intervene in a timely fashion; (2) that a substantial legal interest in the subject matter of the pending litigation exists; (3) that [the] ability to protect that interest is impaired; and (4) that the parties to the underlying suit cannot adequately represent [that] interest. Tenn. R. Civ. P. 24.01. Further, the Court elaborated that the intervening party must "either gain or lose by direct operation of the judgment," and that the presence of a "mere contingent, remote, or conjectural possibility" that the intervening party will suffer consequences is not sufficient. In applying the above factors to the Board's intervention here, the Court averred that the Board's motion should not have been granted since the Board did not have a "substantial" interest in the case since the standard is "best interest of the child, regardless of any [opposing] policies that may be implicated."
However, there is another standard if a party wishes to permissively intervene, and it can be based on either a statutory conditional right or if "an applicant's claim or defense and the main action have a question of law or fact in common"; courts must assess any "undue[] delay or prejudice" to the original parties that could occur as a result of the intervention. Tenn. R. Civ. P. 24.02. Ultimately, the Court determined that the Board's intervention was not permissive since the trial court considered "the need for stability" while ignoring other factors and also incorrectly afforded more weight to the Board's policy than it did to the best interests of the children or the parents' rights.

Secondly, Mother challenged the fact that the trial court declined to hold an evidentiary hearing and neglected to determine if an unanticipated material change in circumstance occurred before changing the primary residential parent designation. However, Father said that Mother was at fault for not requesting an evidentiary hearing, that Mother's deciding to switch the children's school without consulting him constituted the requisite material change in circumstance, and that the court did not need to list and elaborate on every factor having provided adequate information in support of its findings; therefore, he asserted that Mother's issues should be waived at the appellate court level.

In response to these positions, the Court of Appeals explained that "material change in circumstances" is a standard for any change in custody, with the burden being with the parent who wants to modify; in determining whether such a change has occurred, courts must provide findings "as to the reason and facts" in favor of a decision to modify custody. Tenn. Code Ann. § 36-6-101(a)(2)(B). Also, the "threshold" to modify a primary residential parent designation is higher than that necessary to modify a residential parenting schedule.

The Court expressed that a situation no longer being in a child's best interest or a parent neglecting to follow the parenting plan would both serve as examples of "material change of circumstance." Included among factors that Tennessee courts are required to evaluate are whether: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way."

The Court explained that determining "the best interest of the child" is also crucial when courts are faced with requests to modify custody arrangements. In this case, the Court of Appeals concluded that the trial court neglected to make specific findings of fact regarding an unanticipated material change in circumstances, and that the possibility that the parents would reside outside the same school zone was foreseeable. As such, the Court held that Mother should remain the primary residential parent.


Recent Case Shows How Negative Behaviors Can Impact Your Divorce


In this case titled Thomas v. Thomas, No. M2011-00906-COA-R3-CV (Tenn. Ct. App. March 6, 2013), the Court of Appeals found that the trial court did not err in their findings on the income used to set Wife's alimony and child support. Tennessee divorce attorneys learn that a spouse who is inconsistent about stating their income, fails to account for a dissipation of a child' college fund, and takes revengeful actions such as shutting off power and water to the marital home runs the risk of the divorce court deciding many aspects of the case in the other spouse's favor.

The facts of the case are as follows: Husband and Wife were married in April 1994 and had two children during the marriage. Wife filed for legal separation from Husband in June 2009; the couple attempted an unsuccessful reconciliation in October 2009; Wife moved to reinstate her legal separation petition in March 2010. Husband and Wife had several hearings regarding occupation of the marital home, payment of household bills, child support/alimony obligations, and visitation with the children. An order was entered by the court stating specific findings about Husband's truthfulness, the amounts he had paid or failed to pay (specifically regarding the mortgage), and ordered that Wife could remain in the marital home pending further court orders.

The final order for divorce entered by the trial court named Wife as primary residential parent and adopted Wife's Proposed Parenting Plan. "In part, the court based its custody decision on the limiting factors of neglect or substantial nonperformance of parenting responsibilities (Tenn. Code Ann. § 36-6-406(d)(5)). The court found Husband and Wife to be underemployed with Husband's income at $60,000 per year and Wife's at $24,000 per year. Husband was ordered to pay $862 per month in child support, $350 per month in alimony with this amount to increase to $550 per month to begin on April 1, 2012. Wife was also awarded alimony in solido by way of Husband's retirement account. Husband appealed the trial court's findings.

Analysis & Findings: Under Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i), it is appropriate to impute income for the purpose of setting child support payments when "(1) a parent has been determined to be willfully and/or voluntarily underemployed or unemployed..." The determination of whether a party is willfully and voluntarily underemployed is a question of fact, and the trial court has considerable discretion in its determination. Taking into consideration the obliging parents educational level and/or previous work experience, determining whether he/she is willfully and voluntarily underemployed, the trial court must make a finding on their potential earnings. However, it is not presumed that the parent is willfully and voluntarily underemployed or unemployed, the burden lies on the party accusing such. Brewer v. Brewer, No. M2005-02844-COA-R3-CV, 2007 WL 3005346 at *8 (Tenn. Ct. App. 2007).

Wife entered income tax returns of Husband's with an income as low as $74,500 in 2005 to $131,097 in 2003. Husband did not submit any tax returns but testified that his income for 2010 was approximately $2,000 per month. To contest Husband's testimony, Wife produced a credit card application in which Husband reported he made $85,000 per year. After reviewing the record, the appellate court affirmed the trial court's finding of Husband's imputed income of $60,000 for purpose of setting child support and the amount awarded and alimony obligation.

Husband contended using his past behavior to determine the residential schedule and adopting Wife's proposed parenting plan was error by the trial court. The Wife's proposed parenting plan allowed him 85 days per year with his children. The factors in Tenn. Code Ann. § 36-6-404(b) must be considered when figuring the child's residential schedule and determining the primary residential parent. Tenn. Code Ann. 36-6-406(a) gives the court power to limit the child's time with the nonresidential parent "based upon a prior order or other reliable evidence that certain circumstances ... exist to justify imposing a limitation on parenting time." Jernigan v. Jernigan, No. M2011-01044-COA-R3-CV, 2012 WL 1357558, at *4 (Tenn. Ct. App. Apr. 16, 2012).

The trial court cited Husband's "abusive use of conflict" as a reason for limiting his parenting time. Examples of this behavior includes his posting intimate photos of Wife on the internet, his shutting off the electricity and power to the marital residence, and his liquidation of the children's college funds while the litigation was ongoing. The trial court also took into consideration a beer commercial he sent to his daughter and his continued self-absorbed acts. The appellate court reviewed the trial court's record and found no reason for the trial court not to adopt Wife's parenting plan. The decision was affirmed.

Husband argued that awarding Wife his retirement account was not an equitable distribution of marital property. The trial court awarded the account to Wife as alimony in solido. "A reviewing court will find an abuse of discretion only if the trial court 'applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an injustice to the complaining party.'" Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008).

In its determination of alimony in solido, the trial court considered Husband's inability to account for the children's college funds as its basis. The trial court also stated the alimony in solido was used as an alternative to awarding Wife accrued alimony and medical expenses owed by Husband. In reviewing the evidence, the appellate court found that the trial court did not abuse its discretion in awarding Wife alimony in solido by way of the retirement account and affirmed the decision.