IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 14, 2020 Session

BELINDA BENTLEY WRIGHT v. JOHN ANDREW WRIGHT

Appeal from the Circuit Court for Shelby County

No. CT-004322-14 Gina C. Higgins, Judge

___________________________________

No. W2018-02163-COA-R3-CV

___________________________________

This is a divorce case. Appellant Husband appeals the trial court’s: (1) classification of 

certain property; (2) imputation of income for purposes of child support; (3) denial of the 

parties’ proposed parenting plan; and (4) award of rehabilitative, transitional, and 

alimony in solido to Appellee Wife. We conclude that the trial court erred in: (1) the 

classification of certain marital property; (2) the amount of income imputed to the 

parties’; (3) denying the parties’ proposed parenting plan absent sufficient findings; (4) 

its award of rehabilitative alimony; and (5) in the amount of transitional alimony 

awarded. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed in Part, Vacated in Part, Affirmed in Part as Modified, and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY, and ARNOLD B. GOLDIN, JJ., joined.

Stuart B. Breakstone and Adrian Vivar-Alcalde, Memphis, Tennessee, for the appellant, 

John Andrew Wright.

Charles W. McGhee and Leah Lloyd Hillis, Memphis, Tennessee, for the appellee,

Belinda Bentley Wright.

OPINION

I. Background

Appellant John Andrew Wright (“Husband”) and Appellee Belinda Bentley 

Wright (“Wife”) were married on December 23, 2005 in Salt Lake City, Utah. This was 

03/06/2020
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Wife’s second marriage and Husband’s first marriage. One child, Joshua, was born to the 

marriage (Wife has an adult daughter from her previous marriage). At the time of the 

divorce hearing, Joshua was 9 years old. The parties, who are Mormon, first lived in 

Wheaton, Illinois. They moved to Shelby County in February 2009.

Wife has both a J.D. and an L.L.M. from John Marshall University. In 2009, she 

became licensed to practice law in Tennessee and has remained in good standing since 

that time. Although Wife is a licensed attorney in Tennessee, she has never practiced. 

Since the parties’ marriage, Wife’s only employment has been as an adjunct professor at 

the University of Memphis during the Spring 2012 semester; she earned approximately 

$4,000 that semester.

Husband holds a Bachelor of Science degree in chemical engineering from 

Brigham Young University and a Master of Business Administration degree from 

Stanford University. During the marriage, Husband worked for United Airlines in 

Chicago from 2001 to 2006. From 2007 to 2014, he worked for AutoZone in Memphis. 

Husband received a base salary plus bonuses and was eligible to receive stock options 

each year he worked for AutoZone. Not including stock options, Husband’s average 

salary for the last three years he worked for AutoZone (i.e., 2012-2014) was $208,714. 

Approximately one month after the parties separated, in May of 2015, Husband accepted 

AutoZone’s offer of a buy-out; the question of whether Husband was forced to take the 

buy-out or whether he voluntarily did so is disputed in the record. He remained 

unemployed until the Fall of 2015 when he began work as a consultant for Epsilon 

Loyalty Agency. At Epsilon, Husband earned $140 per hour. His 2016 W-2 reflects 

income of $126,800, and his 2017 W-2 reflects income of $63,035. Husband testified 

that his hours at Epsilon had declined due to factors outside his control. 

Approximately ten years prior to the marriage, Husband purchased a home at 7360 

Mimosa Lane in Dallas, Texas (the “Texas Property”). At the time of the hearing, 

Husband estimated that the Texas Property was valued at $500,000 and was encumbered 

with a mortgage of approximately $370,000; he further stipulated that at least $100,000 

in marital funds had been used to maintain the Texas Property and to pay the mortgage. 

Wife asserted that significantly more martial funds were used to maintain the Texas 

Property, thus transmuting it into marital property.

At the time of the marriage, Husband also owned a 401(k) plan with United 

Airlines, which had a balance of approximately $46,986. At the time of the marriage, 

Husband also owned an IRA with Ameritrade, which had a balance of approximately 

$5,904. As discussed below, in October 2007, Husband rolled the entirety of the United 

401(k) into a Fidelity IRA. At the time of the rollover, the United 401(k) had a balance 

of approximately $119,352.27. No other funds were added to the Fidelity account. The 

Fidelity IRA decreased in value due solely to fluctuations in the market, and by May of 

2009, the account balance had dropped to approximately $44,069.00. Husband then
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rolled the Fidelity IRA into the existing Ameritrade IRA.

Wife filed her complaint for divorce on October 14, 2014. Husband filed an 

answer and counter-complaint on November 3, 2014. On August 17, 2015, the trial court 

entered a temporary parenting plan for the minor child. The temporary plan gave the 

parties equal parenting time and joint decision making. Prior to trial, the parties advised 

the court that they had agreed on a permanent parenting plan that contemplated equal 

parenting time. The parties announced that the only issues to be decided regarding 

parenting were child support, designation of the primary residential parent, and which 

party would be entitled to the tax credit.

The hearing on the divorce began on March 28, 2018 and concluded on April 9, 

2018. The trial court entered its final decree of divorce on November 7, 2018; the trial 

court’s relevant findings and conclusions are discussed below. Husband appeals.

II. Issues

Husband raises the following issues for review:

1. The trial court erred in its classification of certain marital assets and 

liabilities.

2. The trial court erred in its imputation of income for the parties and 

finding Husband is willfully underemployed.

3. The trial court erred in not adopting the parties’ proposed [parenting 

plan] and adopted a permanent parenting plan that is not in the best 

interest of the child.

4. The trial court erred in awarding Wife alimony in solido for payment of 

attorney’s fees and three years of transitional alimony.

In the posture of Appellee, Wife raises the following additional issues:

1. Did the trial court err by finding that the property in Texas had both 

marital and separate interest.

2. Did the trial court err by finding that 51% of the AmeriTrade IRA was 

Husband’s separate property.

3. Should Husband be required to pay Wife’s attorney fees and suit 

expenses on appeal.

III. Standard of Review

“We review a non-jury case de novo upon the record with a presumption of 

correctness as to the findings of fact unless the preponderance of the evidence is 

otherwise.” Tennessee Farmers Mut. Ins. Co. v. Debruce, No. E2017-02078-COA-R3-

CV, 2018 WL 3773912, at *3 (Tenn. Ct. App. Aug. 9, 2018) (citing Tenn. R. App. P. 
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13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The trial court’s conclusions 

of law are reviewed de novo and “are accorded no presumption of correctness.” 

Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

IV. Classification of Property

Tennessee Code Annotated section 36-4-121 defines marital property and separate 

property, in relevant part, as follows:

(b) For purposes of this chapter

(1)(A) “Marital property” means all real and personal property, both 

tangible and intangible, acquired by either or both spouses during the 

course of the marriage up to the date of the final divorce hearing and owned 

by either or both spouses as of the date of filing of a complaint for divorce . 

. . . All marital property shall be valued as of a date as near as possible to 

the date of entry of the order finally dividing the marital property;

(B)(i) “Marital property” includes income from, and any increase in the 

value during the marriage of, property determined to be separate property in 

accordance with subdivision (b)(2) if each party substantially contributed to 

its preservation and appreciation;

(ii) “Marital property” includes the value of vested and unvested pension 

benefits, vested and unvested stock option rights, retirement, and other 

fringe benefit rights accrued as a result of employment during the marriage;

(iii) The account balance, accrued benefit, or other value of vested and 

unvested pension benefits, vested and unvested stock option rights, 

retirement, and other fringe benefits accrued as a result of employment 

prior to the marriage, together with the appreciation of the value, shall be 

“separate property.” 

***

(D) As used in this subsection (b), “substantial contribution” may include, 

but not be limited to, the direct or indirect contribution of a spouse as 

homemaker, wage earner, parent or family financial manager, together with 

such other factors as the court having jurisdiction thereof may determine;

***

(2) “Separate property” means:

(A) All real and personal property owned by a spouse before marriage, 
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including, but not limited to, assets held in individual retirement accounts 

(IRAs) as that term is defined in the Internal Revenue Code of 1986 (26 

U.S.C.),1 as amended;

***

(C) Income from and appreciation of property owned by a spouse before 

marriage except when characterized as marital property under subdivision 

(b)(1);

In addition to the provisions of Tennessee Code Annotated section 36-4-121, 

Tennessee courts have recognized two methods by which separate property may be 

converted into marital property, i.e., commingling and transmutation.

[S]eparate property becomes marital property [by commingling] if 

inextricably mingled with marital property or with the separate property of 

the other spouse. If the separate property continues to be segregated or can 

be traced into its product, commingling does not occur.... [Transmutation] 

occurs when separate property is treated in such a way as to give evidence 

of an intention that it become marital property. . . . The rationale 

underlying these doctrines is that dealing with property in these ways 

creates a rebuttable presumption of a gift to the marital estate. This 

presumption is based also upon the provision in many marital property 

statutes that property acquired during the marriage is presumed to be 

marital. The presumption can be rebutted by evidence of circumstances or 

communications clearly indicating an intent that the property remain 

separate.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (brackets and ellipses in 

original) (citations omitted). 

Concerning our review of the trial court’s classification of property in a divorce, 

“[q]uestions regarding the classification of property as either marital or 

separate, as opposed to questions involving the appropriateness of the 

division of the marital estate, are inherently factual.” Owens v. Owens, 241 

S.W.3d 478, 485 (Tenn. Ct. App. 2007) (citations omitted). As such, we 

employ the familiar standard of review outlined in Rule 13(d) of the 

Tennessee Rules of Appellate Procedure. Bilyeu v. Bilyeu, 196 S.W.3d 

131, 135 (Tenn. Ct. App. 2005). “As a general rule, assets acquired by 

either spouse during the marriage are presumed to be marital property.” 

Owens, 241 S.W.3d at 485 (citations omitted). Moreover, when a spouse 
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seeks to assert that an asset acquired during the marriage is separate 

property, he or she bears the burden of proving that fact by a preponderance 

of the evidence. Id. at 485-86 (citations omitted).

Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544, at *7 (Tenn. Ct. 

App. Feb. 13, 2017). 

Here, the parties dispute the trial court’s classification of two assets, i.e., the

Ameritrade IRA and the Texas Property. With the foregoing law in mind, we turn to 

address the parties’ respective arguments.

A. Ameritrade IRA

In the final decree of divorce, the trial court divided the Ameritrade IRA as 

follows:

Ameritrade IRA, ending 0803. At the time of trial in this matter, the 

account balance was $355,767. The parties agreed that at least 41% of this 

balance was Husband’s separate property, owned prior to the parties’ 

marriage. What remained in dispute was what portion of the remaining 

59% was marital or separate property. As such, the Court awards Husband 

the 41% of this balance, as it existed at the time of trial, as his separate 

property. The Court rounds this amount to $146,000. With regard to the 

remaining 59%, the Court finds that, in 2005, prior to the parties’ marriage, 

the account had a balance of $46,986.42 and by the end of 2006, the 

account had a balance of $128,204.23. Then, in 2008, the account had a 

value of $146,127.27. These changes in value were due to contributions as 

well as market pressures.

The Court finds that between 2005 and 2006, the monies that went 

into the account, up to $128,204, were Husband’s separate property and 

that this amount appears to be the 41% that the parties agree is Husband’s 

separate property. The Court then also finds that it would be equitable to 

award Husband an additional $50,000 from this account as his separate 

property, taking his share of the account value at the time of trial to 

$196,000. 

As such, the remaining balance in this account, $159,767, as of the 

time of trial, is marital property and shall be divided as follows:

i. The Court further increases the award of $196,000 to Husband by an 

additional $15,000 from the marital portion of this account to offset the 

award to Wife of 100% of the Epsilon 401k . . . .

ii. Wife shall be awarded, from the marital portion of this account, $119,000 

and Husband shall be awarded the remaining $25,767.
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iii. The Court recognizes, however, that after the trial in this matter and prior to 

this Court’s ruling, the parties entered into consent orders, allowing 

Husband to remove monies from this account in order to meet his ongoing 

monthly expenses as well as meet his pendente lite obligations to Wife. All 

told, Husband removed, by agreement, $42,821 from his separate portion of 

the IRA. As such, Husband’s separate portion of $196,000 is reduced by 

$42,821 making Husband’s separate portion $153,179.

iv. Therefore, Husband’s total award from this account is his separate portion 

of $153,179, his offset of $15,000 due to Wife receiving the Epsilon 401k, 

and his award of the marital portion of $25,767 for a total of $193,946.

v. Once the removal of $42,821 from the IRA balance of $355,767 is taken 

into account, the total account balance is $312,946. Husband’s toal award 

is $193,946 and Wife’s total award is $119,000. Husband’s award is 62% 

of this balance of $312,946 and Wife’s award is 38% [sic] of this balance.

vi. All gains or losses on this account from the time of the last day of trial to 

the date of entry of the Final Decree of Divorce, solely due to market 

pressure, shall be born proportionally by each of the parties, Wife receiving 

38% and Husband receiving 62%.

(Emphasis in original).

In Snodgrass v. Snodgrass, 295 S.W.3d 240 (Tenn. 2009), the Tennessee 

Supreme Court addressed the narrow issue of whether a party’s 401(k) account was a 

“retirement or other fringe benefit right” related to employment. Snodgrass, 295 S.W.3d 

at 249. As set out in context above, under Tennessee Code Annotated section 36-4-

121(b)(1)(B), marital property includes

income from, and any increase in the value during the marriage of, property 

determined to be separate property in accordance with subdivision (b)(2) if 

each party substantially contributed to its preservation and appreciation; (ii) 

. . . the value of vested and unvested pension benefits, vested and unvested 

stock option rights, retirement, and other fringe benefit rights accrued as a 

result of employment during the marriage; 

The Snodgrass Court explained that

Tennessee Code Annotated section 36-4-121(b)(1)(B) contains two 

independent definitions of marital property. The first clause refers to 

income from and appreciation on separate property that accrues during the 

marriage where “each party substantially contributed to [the separate 

property’s] preservation and appreciation.” Tenn. Code Ann. § 36-4-

121(b)(1)(B). The second clause refers to “the value of vested and 

unvested pension, vested and unvested stock option rights, retirement or 
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other fringe benefit rights relating to employment that accrued during the 

period of the marriage.” If the property at issue is deemed to fit within this 

second clause, then it is marital property without regard to “substantial 

contributions” by either spouse. See Batson v. Batson, 769 S.W.2d 849, 

857 (Tenn. Ct. App. 1988) (recognizing that “[t]he pension provision is not 

modified by the ‘substantial contribution’ requirement preceding it” and 

that “pension benefits earned by a spouse during the marriage are marital 

property even though the other spouse did not contribute directly to their 

preservation or appreciation”).

Once the property is determined to be a pension, stock option, 

retirement or other fringe benefit right relating to employment, the issue 

becomes one of determining the value of that benefit that accrued during 

the marriage. In Umstot v. Umstot, 968 S.W.2d 819 (Tenn. Ct. App. 1997), 

our Court of Appeals considered an argument similar to the one being made 

by Husband in this case. In Umstot, the husband had a “retirement plan” 

that held a balance of $4,437 at the time of marriage. The plan grew by 

$154,106 during the marriage. The husband argued that both the premarital 

balance and the growth attributable to that amount should have been 

deemed his separate property. The Court of Appeals disagreed, stating that 

“the critical determination is whether the value ‘accrued’ during the 

marriage.” Id. at 822. The court held that “all of Husband's retirement 

plan, except $4,437.00, accrued during the marriage.” Id. Accordingly, the 

entire balance of the husband’s retirement plan was marital property except 

for the premarital balance of $4,437. Id.

We agree with this reasoning. If a contested piece of property fits 

within the second clause of (b)(1)(B), then the entire net increase in value 

of that property that accrues during the marriage, through whatever means 

or methods, is deemed marital, even if the property contains an element of 

separate property. See Franklin v. Franklin, C/A No. 03A01-9410-CV00364, 1995 WL 371573, at *2 (Tenn. Ct. App. June 21, 1995) (holding 

that “everything in Husband's thrift and profit sharing plan, save the $5,091 

in there at the time of the marriage, ‘accrued’ after the marriage” and was 

therefore marital property because “[t]his code section does not 

differentiate between value added by ‘passive income’ and value added by 

additional contributions during the marriage”); see also McKee v. McKee, 

No. M1997-00204-COA-R3-CV, 2000 WL 666363, at *3 (Tenn. Ct. App. 

May 23, 2000) (recognizing that “marital property includes any increase 

during the marriage in the value of retirement or pension rights, whether 

through passive growth or through either party’s direct or indirect 

contribution”).

If, however, the property at issue does not fit within this second 

clause and is otherwise deemed to be separate, any income from or 

appreciation of the property will remain separate unless a court finds 
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sufficient evidence to support a theory of substantial contribution, 

commingling, transmutation, gift to the marital estate, or some other theory 

by which otherwise separate property may be deemed marital.

Snodgrass, 295 S.W.3d at 247-49 (citations and footnote omitted).

Concerning the distinction between a 401(k) account and an IRA, the Snodgrass

Court, noted that 

individuals may participate in a 401(k) plan only through their 

employment. See 26 U.S.C.A. § 401 (West 2002). A 401(k) account is 

therefore distinct from an Individual Retirement Account (“IRA”), a taxdeferred and age-sensitive savings vehicle available to individuals outside 

of their employment. See generally 26 U.S.C.A. § 408 (West 2002). 

Additionally, an employee may possess only one 401(k) account per 

employer.

Snodgrass, 295 S.W.3d at 250 (footnote omitted). Based on the foregoing distinction, 

the Snodgrass Court went on to clarify its previous opinion in Langschmidt v. 

Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002), stating:

At issue[, in Langschmidt,] were IRAs that had been funded by the 

husband prior to his marriage. The wife did not dispute that the premarital 

contributions to the accounts remained separate property but argued that the 

investment gains in these IRAs that accrued during the marriage were 

marital property because the IRAs were retirement benefits. This Court 

phrased the issue as “whether the increase in value of a spouse’s separate 

[IRA] during the marriage is automatically marital property under Tenn.

Code Ann. § 36-4-121(b)(1)(B) when the IRA is funded entirely with 

premarital earnings.” Langschmidt, 81 S.W.3d at 742. We held with 

respect to that issue that “the appreciation of a spouse’s IRA during the 

marriage is separate property when funded completely with premarital 

earnings and absent substantial contribution by the other spouse to the 

preservation and appreciation of the IRA.” Id.

***

The IRAs at issue in Langschmidt were not “vested pension, 

retirement or other fringe benefit rights” within the meaning of (b)(1)(B) 

because they were not associated with the husband’s employment . . . .

Rather, the IRAs at issue in Langschmidt had been funded by the husband 

in his individual capacity entirely with premarital funds and prior to his 
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marriage. The Langschmidt IRAs were husband’s separate property 

because, first and foremost, they did not fit the definition of marital 

property set forth in the second clause of (b)(1)(B). By the same token, 

because the IRAs at issue in that case were not a product of the husband’s 

employment, they did not involve deferred compensation.

Snodgrass, 295 S.W.3d at 253-54 (footnote omitted). So, “absent substantial 

contribution by the other spouse to the preservation and appreciation of the IRA,” the 

pre-marital value of an IRA and any appreciation in the value of that IRA during the 

marriage remain separate property. Conversely, the Snodgrass Court explained that

[t]he right to participate in a 401(k) plan, if exercised, is also capable of 

accruing value over time beyond the parties’ contributions, both through 

employer contributions and through investment gains. A spouse’s 401(k) 

account therefore fits the (b)(1)(B) definition of marital property as a 

“retirement or other fringe benefit right[ ] relating to employment.” 

Whether the monies within the account are marital property or separate 

property depends on when they accrued, not how. See Franklin [v. 

Franklin, C/A No. 03A01-9410-CV-00364,] 1995 WL 371573, at *2 

[(Tenn. Ct. App. June 21, 1995)] (recognizing that, in assessing marital 

portion of retirement benefits, “[t]he critical determination is whether the 

value ‘accrued’ during the marriage”).

***

In summary, then, Tennessee Code Annotated section 36-4-

121(b)(2)(C) defines separate property as including “[i]ncome from and 

appreciation of property owned by a spouse before marriage” but 

specifically excludes such income and appreciation when it is 

“characterized as marital property under subdivision (b)(1).” That portion 

of a 401(k) account existing on the date of marriage remains separate 

property. Because, however, the account is a “retirement or other fringe 

benefit right[ ] relating to employment,” id. at (b)(1)(B), the entire net 

amount of income and appreciation that was experienced in Husband’s and 

Wife’s 401(k) accounts during their marriage is characterized as marital 

property, including that which accrued on the premarital balances. See also 

Langschmidt, 81 S.W.3d at 749 (“Retirement benefits accrued during the 

marriage clearly are marital property under Tennessee law.”).

Snodgrass, 295 S.W.3d at 251.

Viewing the facts of the instant case in light of the Tennessee Supreme Court’s 

holdings in Snodgrass, we conclude that the trial court’s application of a percentage-
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based division of this asset was error. Here, it is undisputed that, at the time of the 

marriage, Husband’s United 401(k) had a balance of $46,986.42. Under Snodgrass, this 

was his separate property; however, any appreciation or contributions to the 401(k)

during the marriage were marital property. During the first year of marriage, i.e., 2006, an 

additional $72,364.92 was deposited into the United 401(k). No other funds were added 

to the account during the marriage; however, due to the market, and as found by the trial 

court, the value of the account rose to $128,204.23 in 2006. Then, in 2008, the account 

value rose to $146,127.27. As set out above, the trial court included the percentage of 

growth on Husband’s initial $46,986.42 in calculating the portion of the account that was 

his separate property. This was error. Under Snodgrass, Husband is not entitled to the 

appreciation on the $46,986.42 during the marriage; any increase in value in the 401(k)

account after the marriage is marital property. Husband’s separate property remains 

$46,986.42. Snodgrass, 295 S.W.3d at 251 (“That portion of a 401(k) account existing 

on the date of marriage remains separate property. Because, however, the account is a 

‘retirement or other fringe benefit right[ ] relating to employment,’ the entire net amount 

of income and appreciation [in the] accounts during their marriage is characterized as 

marital property, including that which accrued on the premarital balances.”) (citations 

omitted).

On or about July 18, 2008, Husband rolled the United 401(k) funds into a new 

Fidelity IRA. It is undisputed that no other funds, marital or otherwise, were added to the 

Fidelity IRA at any time. Thus, Husband’s separate property, i.e., $46,986.42, remained 

traceable. Church v. Church, M2004-02702-COA-R3-CV, 2006 WL 2168271, at *7 

(Tenn. Ct. App. Aug.1, 2006) (“Property acquired prior to a final [divorce] hearing that is 

traceable to separate property constitutes separate property unless it has been gifted to the 

marital estate or has been transmuted into marital property through inextricable 

commingling with marital estates.”). Thereafter, the Fidelity IRA decreased in value 

during the market downturn of 2008. By 2009, the value of the account had fallen to 

$44,069.95.

As mentioned above, the Ameritrade IRA, which is now the subject of this appeal, 

was opened by Husband prior to the marriage. It is undisputed that at the time of the 

marriage, the Ameritrade IRA had a value of $5,973.60. Under Snodgrass, this was 

Husband’s separate property. When Husband moved the Fidelity IRA funds into the 

existing Ameritrade IRA, his separate property was the $46,986.42 pre-marital value of 

the United 401(k), which remained traceable, plus the $5,973.60 pre-marital value of the 

Ameritrade IRA. At the time of the hearing, the value of the Ameritrade IRA had grown 

to $355,757. The question, then, is whether any amount of the $355,757 over what we 

know to be Husband’s separate property, i.e., $52,960.02, is also Husband’s separate 

property. We turn to that question.

The Ameritrade IRA was initially funded with Husband’s separate property of 

$52,960.02 and marital property consisting of amounts that had accrued and been added 
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to the United 401(k) during the marriage, see supra. In this regard, the instant case is 

distinguishable from the Langschmidt case, where the Tennessee Supreme Court held

that “the appreciation of a spouse’s IRA during the marriage is separate property when 

funded completely with premarital earnings and absent substantial contribution by the 

other spouse to the preservation and appreciation of the IRA.” 81 S.W.3d at 742

(emphasis added). Here, the Ameritrade IRA was funded with both marital and separate 

property. Furthermore, the account enjoyed significant growth during the marriage. 

Because the growth is attributable both to market factors and to contributions made 

during the marriage, any amounts over Husband’s initial contribution of $52,960.02 are 

marital property. Accordingly, while we affirm the trial court’s finding that this 

$355,767 asset contains both separate and marital property, we modify the trial court’s 

finding that $196,000 of the asset is Husband’s separate property. Based on the foregoing 

analysis, Husband is entitled to $52,960.02 of the Ameritrade IRA as his separate 

property. The remaining balance of the account, including any accrual or loss during the 

pendency of this appeal, is marital property, which the trial court is instructed to divided 

equitably on remand. Our holding does not preclude the trial court from awarding 

Husband the additional $15,000 as an offset of the award of the Epsilon account to Wife, 

nor is the trial court precluded from subtracting, from Husband’s separate portion of this 

account, any monies he withdrew to satisfy his pendente lite obligations.

B. Texas Property

In the final decree of divorce, the trial court divided the Texas Property as follows:

This property was purchased by Husband prior to the marriage and titled 

solely in the name of Husband. During the marriage, however, the Court 

finds that there are some marital equities in the property due to the 

comingling of separate and marital property. Therefore[,] this Court finds 

that the property is made of mixed marital and separate property.

The Court finds that the fair market value of this property is 

$575,000 based upon Husband’s testimony as well as his pre-trial 

submissions. The parties agree that there is an outstanding mortgage on the 

home of $372,000, leaving equity in the home of $203,000. Of this amount 

of equity, the Court finds that $175,000 is marital property based upon the 

marital funds used to refinance the home, the renovations of the home, and 

the marital funds used to pay the mortgage above and beyond the rent that 

was received from tenants. The remaining $28,000 is Husband’s separate 

property.

Husband is awarded sole title and exclusive ownership of the [Texas 

Property] as his separate asset. Wife shall be divested of any right, title and 

interest in and to said property, and the same shall be vested into Husband. 

Husband shall indemnify and hold Wife harmless from any indebtedness or 

liability thereon. Husband shall be responsible for paying any and all 
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indebtedness associated with said real property, and Husband shall be 

further responsible for payment of all other expenses associated with said 

property. Wife shall execute a quit claim deed divesting herself of any and 

all interest in said property.

The Court also finds that the marital portion of this equity is 

$175,000 and that the remaining equity is Husband’s separate property.

On appeal, both parties refute the trial court’s characterization and division of the 

Texas Property. Husband argues that the trial court failed to state the basis for its 

decision in violation of Tennessee Rule of Civil Procedure 52.01 (“In all actions tried 

upon the facts without a jury, the court shall find the facts specially and shall state 

separately its conclusions of law and direct the entry of the appropriate judgment.”). 

Thus, he contends that the trial court’s ruling on the Texas Property should be vacated 

and remanded. We disagree. As set out above, the trial court’s ruling on the Texas 

Property contains sufficient findings to indicate its reasoning so as to enable this Court to

review the decision. Having so concluded, we turn to the substantive question of whether 

the trial court erred in classifying the Texas Property as both marital and separate.

At trial, Husband maintained that the Texas Property remained his separate 

property based on the fact that the property remained titled in his name. At the outset, we 

note that the fact that the Texas Property was titled in Husband’s name alone is not 

dispositive of the question of whether the property remains Husband’s separate property. 

See Cohen v. Cohen, 937 S.W.2d 823, 833 n.12 (Tenn. 1996) (“The fact that no title or 

other legal interest has been conveyed to the non-owner spouse is irrelevant. For the 

purposes of property division in a divorce, ‘[i]n the final analysis, the status of property 

depends not on the state of its record title, but on the conduct of the parties.’” (citations 

omitted)). “An asset separately owned by one spouse will be classified as marital 

property if the parties themselves treated it as marital property.” Fox v. Fox, No. 

M2004-02616-COA-R3-CV, 2006 WL 2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006). 

Wife argues that the entire Texas Property was transmuted into marital property 

due to the expenditure of joint funds for the maintenance of the property during the 

marriage. As very recently explained by this Court:

“[Transmutation] occurs when separate property is treated in such a way as 

to give evidence of an intention that it become marital property.” 

Snodgrass v. Snodgrass, 295 S.W.3d 240, 256 (Tenn. 2009) (quoting 

Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002)). In 

determining intent, “the ultimate test is how the property was treated by the 

parties.” Strickland v. Strickland, No. M2012-00603-COA-R3-CV, 2012

WL 6697296, at *17 (Tenn. Ct. App. Dec. 21, 2012). Factors include (1) 

the use of the property by the family or to support the marriage; (2) shared 

control, maintenance, or management of the property; (3) titling the 
- 14 -

property jointly; and (4) use of the non-owner spouses’ credit or separate 

funds to pay for or improve the property. Luplow v. Luplow, 450 S.W.3d 

105, 114 (Tenn. Ct. App. 2014) (quoting Fox, 2006 WL 2535407, at *3); 2 

John Tingley and Nicholas B. Svalina, Marital Property Law § 42:30 (2d 

ed.); see also Woodward v. Woodward, 240 S.W.3d 825, 829 (Tenn. Ct. 

App. 2007) (use as marital residence); McClellan v. McClellan, 873 

S.W.2d 350, 352 (Tenn. Ct. App. 1993) (intent to use as permanent family 

home); Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. Ct. App. 1995) 

(use of marital and non-owner spouse’s funds).

Anderson v. Anderson, No. M2018-01248-COA-R3-CV, 2019 WL 3854663, at *5 

(Tenn. Ct. App. Aug. 16, 2019). As the proponent of transmutation, Wife has the burden 

of establishing same. Nesbitt v. Nesbitt, No. M2006-02645-COA-R3-CV, 2009 WL 

112538, at *9 (Tenn. Ct. App. Jan. 14, 2009).

Turning to the record, at the hearing, Husband conceded that at least $100,000 of 

marital funds had been used to maintain the Texas Property, to-wit: 

Q. Would you agree with me that there’s been substantial marital funds 

placed in the [Texas Property] to maintain it and pay the mortgages, to do 

improvements, pay taxes?

A. I agree that there have been substantial funds . . . . I would say more 

than $100,000.00, which is pretty substantial and that all of those funds 

came from my efforts and labor, my income.

***

Q. So it’s your testimony that at least . . . $100,000.00 of marital funds 

went into the [Texas Property]?

A. I would stipulate to $100,000.00, yes.

Concerning income received during the marriage from rent on the Texas Property, 

Wife entered Trial Exhibit 6, which consists of Wife’s Rule 1006 summary of rental 

income from the Texas Property from 2006 until 2016. Wife’s summary indicates that 

during the marriage, the parties received gross rents of $253,606.84. Wife’s summary is 

corroborated by statements from Remarkable Asset Management, the management 

company for the Texas Property from 2009 until 2016. 

Concerning expenditures for the mortgage, maintenance, and taxes on the Texas 

Property during the marriage, Wife testified, in relevant part, as follows:
- 15 -

Q. Has the rental income on [the Texas Property] covered the cost of the 

mortgage?

A. It has not.

Q. Have there been repairs made to this property during the marriage?

A. There have been maintenance repairs as well as significant renovations 

and upgrades made over the course of the years.

Q. Approximately what sort of price range did that renovation encumber?

A. In 2009 it had been vacant for over a year and part of the problem was it 

needed to be upgraded. We spent over $20,000.00 in materials and labor as 

well as I spent almost two months living down there, painting, dealing with 

contractors and purchasing supplies and doing upgrades myself.

Q. The cost of these renovations and this mortgage, what account were 

they paid from? Where did that money come from?

A. It came from marital assets . . . . It’s paid for out of the joint marital 

account.

***

Q. What w[as] the source of these funds that were used on the [Texas 

Property]?

A. These were mostly marital funds; some of my premarital assets as well.

Q. And can you tell the Court what the total expenses were from marital 

funds and your separate funds on [the Texas Property during the marriage]?

A. Sure. $552,812.27

In addition to the foregoing testimony, Wife entered Trial Exhibit 7, which is comprised 

of her Rule 1006 summary of total expenses for the Texas Property. The summary shows 

total expenses of $552,812.27 for the years 2006 through October of 2016. Also, as part 

of Trial Exhibit 7, Wife provided monthly bank statements for the parties’ joint checking 

account. These monthly statements cover the years 2006 through 2016 and corroborate 

the itemization of expenditures listed in Wife’s summary. Wife’s testimony and proof 

concerning the rental income from and expenditures on the Texas Property are not 

disputed except to the extent that Husband testified, without corroborating proof, that the 
- 16 -

parties spent at least $100,000 in marital funds for maintenance of the Texas Property. 

Based on the evidence, “the strength or weakness of Wife’s [transmutation] argument 

[largely] depends on the amount of joint maintenance and management” of the Texas 

Property. Watson v. Watson, No. E2010-00577-COA-R3-CV, 2010 WL 5549050, *7 

(Tenn. Ct. App. Dec. 29, 2010).

In support of her argument that the entire Texas Property was transmuted, through 

joint maintenance and management, into marital property, Wife relies on this Court’s

Anderson opinion. In Anderson, Wife helped make loan payments on the promissory 

note she signed, and the proceeds from the loan were used in part to refinance the 

existing mortgage on the real property husband brought to the marriage. 2009 WL 

3631029, at *2. The trial and this Court relied on the wife’s payments to conclude that 

the property, which was initially husband’s separate property, was ultimately transmuted 

into marital property:

Based on the fact that Ms. Anderson signed the note which allowed Mr. 

Anderson to refinance and improve the . . . property and helped him make

the payments, we cannot find that the evidence preponderates against a 

finding that the Brick Church Pike property became marital property by 

transmutation.

Anderson, 2009 WL 3631029, at *3. Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. 

App. 2007) (affirming trial court’s finding of transmutation where, “[f]or approximately 

twenty years, [husband] used marital funds to pay $150 per month to help defray the 

mortgage expenses. . . . This evidence is sufficient to support the trial court’s decision to 

classify [the] house as marital property.”); Gorbet v. Gorbet, No. W2011-01879-COAR3–CV 2012 WL 4847090 (Tenn. Ct. App. Oct. 11, 2012) (finding transmutation where, 

inter alia, “Husband paid the mortgage with funds earned during the marriage”).

In the instant case, both parties testified that a substantial amount of marital funds 

were used to maintain the Texas Property, including the mortgage payments thereon. 

Husband’s uncorroborated testimony that the amount was no more than $100,000 is 

disputed by Wife’s corroborated testimony that the amount expended was closer to 

$500,000. Despite the disparity in the parties’ respective testimony, the trial court’s 

undisputed finding was that the equity in the Texas Property (at the time of the hearing)

was $203,000. The amount of equity available leads us to conclude that the expenditure 

of even $100,000 of marital funds on the Texas Property was sufficient to transmute the 

entirety into marital property. See Liner v. Liner, No. M2010-00582-COA-R3-CV, 2011 

WL 1420883, *3 (Tenn. Ct. App. April 13, 2011) (finding transmutation of real property 

where “[t]he mortgage and utilities for the home were paid out of [a] joint account,” and 

wife made “non-financial contributions to the ongoing maintenance and management of 

the residence”); Hagler v. Hagler, No. E2007-02609-COA-R3-CV, 2009 WL 838163, *3

(Tenn. Ct. App. March 31, 2009) (“In this case, the property was never titled jointly, but 
- 17 -

the evidence supports the Trial Court’s conclusion that this property should be treated as 

marital. The evidence demonstrated that . . . wife contributed . . . to the maintenance and 

improvement of the property. The evidence shows that this property was intended to be 

part of the marital estate . . . .”); Daniel v. Daniel, No. M2006-01579-COA-R3-CV, 2007 

WL 3202778, at *6 (Tenn. Ct. App. Oct. 31, 2007) (finding transmutation where “[t]he 

mortgage, insurance, and taxes on the [] property were paid with the rental proceeds that 

had been deposited into a joint bank account held by the parties”). Based on the totality 

of the circumstance and the foregoing law, we reverse the trial court’s characterization of 

the Texas Property as mixed marital and separate property and remand for an equitable 

division of the equity and debt thereon as marital property.

V. Imputation of Income

In its final decree of divorce, the trial court imputed income to both parties for 

purposes of child support, to-wit:

5. The Court imputes to Husband $12,000 per month as gross income for 

purposes of child support.

6. The Court imputes to Wife $2,000 per month as gross income for 

purposes of child support.

As explained by this Court, 

[t]he Tennessee Child Support Guidelines provide that income may be 

imputed to a parent when the court determines that the parent is voluntarily 

underemployed. Wadhwani v. White, No. M2015-01447-COA-R3-CV, 

2016 WL 4579192, at *13 (Tenn. Ct. App. Aug. 31, 2016) (citing Tenn. 

Comp. R. & Regs. 1240-02-04-.04). The guidelines provide factors to be 

considered when determining whether a parent is willfully and voluntarily 

underemployed or unemployed. Richardson v. Spanos, 189 S.W.3d 720, 

726 (Tenn. Ct. App. 2005). The factors include, inter alia, the parent’s past 

and present employment; the parent’s education, training, and ability to 

work; the parent’s role as stay-at-home parent; and any additional factors 

deemed relevant to the particular circumstances of the case. See Tenn. 

Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iii).

The issue of voluntary underemployment is a question of fact that requires 

careful consideration of all the attendant circumstances. Owensby v. Davis, 

No. M2007-01262-COA-R3-JV, 2008 WL 3069777, at *4 (Tenn. Ct. App. 

July 31, 2008) (citing Richardson, 189 S.W.3d at 726). We afford the trial 

court considerable discretion in this determination. Thayer v. Thayer, No. 

M2015-00194-COA-R3-CV, 2016 WL 4056316, at *4 (Tenn. Ct. App. July 

26, 2016) (citing Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App. 
- 18 -

2001)). “The trial court’s decision is entitled to a presumption of 

correctness, particularly ‘when it is premised on the trial court's singular 

ability to ascertain the credibility of the witnesses.’” Id. (citing Reed v. 

Steadham, No. E2009-00018-COA-R3-CV, 2009 WL 3295123, at *2 

(Tenn. Ct. App. Oct. 14, 2009)).

Ghorashi–Bajestani v. Bajestani, No. E2016–00063–COA–R3–CV, 2017 WL 809880, 

at *9 (Tenn. Ct. App. March 1, 2017). As further explained by this Court:

When called upon to determine whether a parent is willfully and voluntarily 

unemployed or underemployed, the courts will consider the factors in Tenn. 

Comp. R. & Regs. 1240-2-4-.04(3)(d)(2), as well as the reasons for the 

party’s change in employment. Demers v. Demers, 149 S.W.3d 61, 69 

(Tenn. Ct. App. 2003); Eldridge v. Eldridge, 137 S.W.3d 1, 21 (Tenn. Ct. 

App. 2002). If a parent’s reasons for working in a lower paying job are 

reasonable and in good faith, the court will not find him or her to be 

willfully and voluntarily underemployed. Willis v. Willis, 62 S.W.3d at 738. 

The courts are particularly interested in whether a parent’s change in 

employment [or amount of income] is voluntary or involuntary, Eldridge v. 

Eldridge, 137 S.W.3d at 21, and are more inclined to find willful and 

voluntary underemployment when a decision to accept a lower paying job 

is voluntary. Demers v. Demers, 149 S.W.3d at 69.

Richardson v. Spanos, 189 S.W.3d, at 726. Furthermore,

[a] determination of willful and/or voluntary underemployment or 

unemployment is not limited to choices motivated by an intent to avoid or 

reduce the payment of child support. The determination may be based on 

any intentional choice or act that adversely affects a parent’s income.

Tenn. Comp. R. & Reg. 1240-2-04-.04(3)(a)(2)(ii). Accordingly, the touchstones for this 

inquiry are the reasonableness of the employment decision and whether the choice to take 

a lower paying job was voluntary, to-wit:

Our courts will consider the reasonableness of the obligor parent’s 

occupational choices in light of surrounding circumstances. See Narus v. 

Narus, No. 03A01-9804-CV-00126, 1998 WL 959839 at *2 (Tenn. App. 

Ct. Dec. 31, 1998) (no Tenn. R. App. P. 11 application filed) (obligor not 

willfully and voluntarily unemployed or underemployed where obligor 

chose “to retire at a reasonable age, for legitimate reasons, and otherwise 

under reasonable circumstances.”). The trial court must consider whether 

the choice to take a lower paying job is made in good faith and whether 

some or all of the unrealized earning capacity should be included as 
- 19 -

imputed income.

* * *

Generally, where a reduced actual income is involved, the fact patterns 

differ on whether the leaving of previous employment or other income 

producing activity was voluntary. . . .

Ralston v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, at *3 (Tenn. Ct. App. 

Aug. 3, 1999).

Concerning whether the parties were willfully and voluntarily unemployed or 

underemployed, the trial court’s final decree of divorce states:

The Court also specifically finds that Husband was released, or engineered 

his release, from employment that allowed him to be a high-wage earner 

and its is highly unlikely that Father will be reemployed in his field of 

loyalty analyst. The Court finds that Father has devised a plan not to find 

more stable and substantially gainful employment until after the Court 

establishes and sets alimony and child support and divides the financial 

assets. The Court also finds that Husband is willfully underemployed.

***

The Court finds that Wife is employable but will not likely attempt gainful 

employment until after the divorce is final and finances and support have 

been established by the Court. Wife has a law degree and is licensed in 

Tennessee and has an LLM in good standing.

Turning to the record, during the early part of the marriage, 2006 to 2014, 

Husband had solid employment with United Airlines and AutoZone, where he worked as 

the director of loyalty and analysis. Husband’s average salary for the last three years he 

worked for AutoZone (i.e., 2012-2014) was $208,714 not including stock options. In 

2014, Husband took a “buy-out” from AutoZone. After he left AutoZone, Husband was 

unemployed until the Fall of 2015, when he took a part-time consultant position with 

Epsilon Consulting. Husband earned $140 per hour at Epsilon. In 2016, he earned 

$126,800; in 2017, he earned $63,035. Concerning the reduction in his income, Husband 

explained:

Regarding my hours [at Epsilon], my consulting hours have declined 

significantly over the last year. I’ve acknowledged that. My sponsor who 

brought me on board with that consulting agency himself got canned and 
- 20 -

not only did that have a direct result in fewer clients for them . . . [and] no 

new work for me. So, yes, my hours did decline, not by my choice.

Husband further admitted that his employment decisions have been influenced by his 

desire to spend more time with the parties’ minor child:

There was a . . . full-time versus part-time engagement for three months, 

and I did turn down the full-time engagement for three months in lieu of 

part-time engagement . . . because I could not . . . keep my son. . . .

Although we acknowledge Husband’s desire to spend time with his son, Husband opined 

that his decision to take part-time employment has had a negative effect on his job 

prospects, to-wit:

With four years of under—of part-time work, I am effectively damaged 

goods right now. I have not damaged myself intentionally. I have not 

destroyed the career I’ve spend decades building intentionally . . . . I have 

been actively working to identify opportunities from the moment I left 

AutoZone . . . .

As noted above, “[t]he determination [of voluntary underemployment] may be based on 

any intentional choice or act that adversely affects a parent’s income.” Tenn. Comp. R. 

& Reg. 1240-2-04-.04(3)(a)(2)(ii). Here, by his own testimony, Husband made decisions 

that may have allowed him more time with his child, but which adversely affected his 

ability to earn income comparable to that he enjoyed during the marriage. As such, we 

conclude that the trial court did not err in determining that Husband was voluntarily 

underemployed for purposes of imputing income to him. That being said, the question 

remains whether the amount of income imputed to him was reasonable.

Husband testified that his “average income over the last three years was about 

$78,000” but acknowledged that “if I could find a full-time position [I] could earn a little 

bit more.” According to Husband’s testimony, he has applied for full-time positions with 

base salaries between $100,000 and $130,000:

So the FedEx job was 100 to 120,000 was the stated pay range. I did make 

it to the final five in that job, but did not receive the offer . . . There is 

another position that I applied for recently. The target pay on that was 120 

to 130. It was not a local job. It would have to require moving to Raleigh, 

North Carolina . . . . That job was as close a job as I have seen to exactly 

what I was doing at AutoZone.

As set out above, the trial court imputed income to Husband of $12,000 per month, or 

$144,000 annually. Although less than the $208,714 average salary he earned at 

AutoZone, the trial court specifically found that “it’s highly unlikely that [Husband] will 
- 21 -

be reemployed in his field of loyalty analyst.” Based on the evidence, we agree. 

Nonetheless, from our review, there is no basis in the record for the trial court’s 

imputation of $144,000. In determining the proper amount of income to impute, a trial 

court should consider a parent’s education, training, and ability to work, as well as past 

and present employment. Tenn. Comp. R. & Regs. 1240-2-04-.04(3)(a)(2)(iii). The 

court should impute additional income to an underemployed parent in an amount that 

reflects that parent’s income potential or earning capacity. Id.; Armbrister v. Armbrister, 

No. E2010-01561-COA-R3-CV, 2011 WL 5830466, at *6 (Tenn. Ct. App. Nov. 21, 

2011). Based on Husband’s testimony, and the record as a whole, we conclude that there 

is an evidentiary basis to support imputation of income to Husband of $120,000 per year, 

or $10,000 per month. We, therefore, modify the trial court’s order to reflect this amount 

of imputed income. 

Concerning Wife, we agree with the trial court’s determination that she “is 

employable.” Wife has both a J.D. and an LLM, and she is a licensed attorney. There is 

nothing in the record to suggest that she has any disability that would preclude her from 

seeking gainful employment. Accordingly, she is voluntarily unemployed. While 

acknowledging that Wife has forgone efforts to obtain employment until the divorce is 

settled, the trial court imputed income of only $24,000, or $2,000 per month, to her. This 

was error. 

Under the Child Support Guidelines, when “[t]he tribunal has no reliable evidence 

of the parent’s income or income potential; [t]hen, in such cases, gross income for the 

current and prior years shall be determined by imputing annual gross income of . . . 

twenty-nine thousand three hundred dollars ($29,300) for female parents.” Tenn. Comp. 

R. & Reg.1204.2-4-.04(iv)(1). Here, however, Wife testified, in relevant part, that:

Q. Do you believe it’s possible to make up to $50,000.00 with the 

[degrees] you have or between thirty and fifty thousand?

A. I know I was able to get a job for $30,000.00 in Chicago and I imagine 

ten years later a similar job in Chicago would probably be—I could 

probably get paid more.

In view of Wife’s education, she should be fully capable of earning at least $50,000 per 

year. Therefore, the trial court’s imputation of income to her of less than the minimum 

wage in this State was error. Based on the record, and Wife’s own testimony, we modify 

the trial court’s order to reflect an imputed income to Wife of $50,000 per year, or 

$4,166.67 per month.

VI. Parenting Plan and Child Support

In divorce cases involving minor children, “the court may . . . award the care, 
- 22 -

custody and control of such ... children to either of the parties to the suit or to both parties 

in the instance of ... shared parenting ... as the welfare and interest of the ... children may 

demand,” Tenn. Code Ann. § 36-6-101(a)(1). Both the primary residential parent 

designation and the parenting schedule are driven by the child’s best interest. See id. §§ 

36-6-106(a), -404(b) (requiring custody determination and parenting plan to be in the best 

interest of child); Armbrister, 414 S.W.3d at 693. Courts must fashion a residential 

schedule “consistent with the child’s developmental level and the family’s social and 

economic circumstances, which encourage[s] each parent to maintain a loving, stable, 

and nurturing relationship with the child.” Tenn. Code Ann. § 36-6-404(b). Unless 

certain limiting factors found in Tennessee Code Annotated § 36-6-406 are “dispositive 

of the child’s residential schedule,” which is not the case here, the court determines the 

schedule on the basis of the child’s best interest, relying on a non-exclusive list of factors 

found at Tennessee Code Annotated § 36-6-106(a). Id. The determination of a child’s 

best interest presents a question of fact. Armbrister, 414 S.W.3d at 692-93; In re T.C.D., 

261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus, we “presume that a trial court’s 

factual findings on [best interest] are correct and not overturn them, unless the evidence 

preponderates against the trial court's findings.” Armbrister, 414 S.W.3d at 693. 

At the outset of the divorce hearing, Wife’s attorney announced that the parties 

had reached an agreement concerning the parenting plan. The plan largely followed the 

pendente lite schedule and awarded equal parenting time to the parties. Although 

Husband indicated that the agreed permanent parenting plan may prove to be unrealistic 

if he has to move from Memphis for employment, at the time of the hearing, his concerns 

were merely speculative. When presented with the permanent parenting plan, the trial 

court stated:

The law says equal parenting schedule, there is a default to the mother as 

the primary residential parent.1 That’s what the law says. Now, if you all 

 

1 As a point of edification, Tennessee law does not currently favor one parent over the other in 

terms of primary residential parent. Although Tennessee historically implemented the so-called tender 

ages doctrine, as explained by this Court:

This view [i.e., the tender ages doctrine preference for the mother to have 

custody of minor children] prevailed in Tennessee for decades. See, for example, Parker 

v. Parker, 235 SW2d 580 (Tenn. 1951); Lyle v. Lyle, 6 SW 878, (1888); McAllister v. 

McAllister, 57 Tenn. 345 (1872); Robinson v. Robinson, 26 Tenn. 40 (1846); Long v. 

Long, 488 SW2d 729, (Tenn. App. 1972); Logan v. Logan, 176 SW2d 601 (1943). But 

the law respecting custodial preference gradually edged away from gender considerations 

concurrently with the enactment of legislation and the development of a body of law 

dealing with the eradication of discrimination. The trend towards abolition of the 

doctrine was halted when the Legislature, in 1987, adopted T.C.A. 36-6-101(d) which 

provides:

(d) It is the legislative intent that the gender of the party seeking custody 
- 23 -

want to put some proof on otherwise, I’ll hear that, and that takes into 

consideration the threshold question: Am I going to approve it otherwise? 

All right.

On appeal, Husband argues that the “trial court created the reasonable impression that 

testimony regarding the comparative fitness of the parents would not be necessary.” We 

agree. Although there is some evidence concerning the parties’ respective parenting 

styles and the contentious interactions between them over parenting decisions, the record 

is not fully developed in regard to whether deviation from the parties’ proposed plan 

would be in the child’s best interest. Nonetheless, the trial court found, in its final decree 

of divorce, as follows:

7. The Court recognizes that the parties submitted a Permanent Parenting 

Plan that was substantially agreed to by the parties. Said Plan provided for 

week on/week off parenting time for the parties. Having reviewed the 

proposed Permanent Parenting Plan, however, the Court does not believe 

that the Plan is in the best interest of the minor child as the Court has 

concerns about whether the parties can jointly parent the child. The Court 

concludes that they cannot.

8. The Court finds that Wife has been the homemaker and has stayed home 

to care for the minor child. The Court finds that Husband has consistently 

been the wage earner, but has turned down job opportunities to maximize 

his time with the child. While this would be laudable under other 

circumstances, such as the parties were cordial to each other and money 

was not an issue, those are not the facts of this case.

9. The Court finds that Wife shall be designated as the primary residential 

parent and that the parenting schedule shall be comprised of 232 days per 

year for Wife and 133 days per year for Husband.

Tennessee Code Annotated section 36-6-106 (a), to which we refer the trial court, 

 

shall not give rise to a presumption of parental fitness or cause a 

presumption in favor or against the award of custody to such party; 

provided, however, that in the case of a child of tender years, the gender 

of the parent may be considered by the court as a factor in determining 

custody after an examination of the fitness of each party seeking custody.

This enactment acknowledges the ancient rule inherent in the tender years 

doctrine, but nevertheless parallels the emergent constitutional and civic requirements of 

neuter-based human relations.

Gambill v. Gambill, 1988 WL 97026, *1 (Tenn. Ct. App. Sept. 21, 1988). The current iteration of 

Tennessee Code Annotated section 36-6-101(d) provides: “It is the legislative intent that the gender of the 

party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or 

constitute a factor in favor or against the award of custody to such party.”
- 24 -

lists fifteen factors, including, but not limited to,

(1) The strength, nature, and stability of the child’s relationship with each 

parent, including whether one (1) parent has performed the majority of 

parenting responsibilities relating to the daily needs of the child;

(2) Each parent's or caregiver's past and potential for future performance of 

parenting responsibilities, including the willingness and ability of each of 

the parents and caregivers to facilitate and encourage a close and continuing 

parent-child relationship between the child and both of the child’s parents, 

consistent with the best interest of the child. In determining the willingness 

of each of the parents and caregivers to facilitate and encourage a close and

continuing parent-child relationship between the child and both of the 

child’s parents, the court shall consider the likelihood of each parent and 

caregiver to honor and facilitate court ordered parenting arrangements and 

rights, and the court shall further consider any history of either parent or 

any caregiver denying parenting time to either parent in violation of a court 

order;

***

(5) The degree to which a parent has been the primary caregiver, defined as 

the parent who has taken the greater responsibility for performing parental 

responsibilities;

(6) The love, affection, and emotional ties existing between each parent and 

the child;

(7) The emotional needs and developmental level of the child;

***

(10) The importance of continuity in the child’s life and the length of time 

the child has lived in a stable, satisfactory environment;

***

(13) The reasonable preference of the child if twelve (12) years of age or 

older. The court may hear the preference of a younger child upon request. 

The preference of older children should normally be given greater weight 

than those of younger children;
- 25 -

(14) Each parent’s employment schedule, and the court may make 

accommodations consistent with those schedules; and

As its truncated findings, supra, suggest, the trial court’s primary reason for 

deviation from the parties’ agreed parenting plan was its “concerns about whether the 

parties can jointly parent the child.” The trial court failed to elaborate on the basis for 

these concerns before concluding that the parents could not jointly parent. “In bench 

trials, trial courts must make findings of fact and conclusions of law to support their 

rulings.” Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL 6727533, at *3 

(Tenn. Ct. App. Dec. 27, 2012). Tennessee Rule of Civil Procedure 52.01 states, in 

pertinent part, “In all actions tried upon the facts without a jury, the court shall find the 

facts specially and shall state separately its conclusions of law and direct the entry of the 

appropriate judgment.” “Simply stating the trial court’s decision, without more, does not 

fulfill this mandate.” Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL

5266382, at *8 (Tenn. Ct. App. Oct. 24, 2012). “[T]he General Assembly’s decision to 

require findings of fact and conclusions of law is ‘not a mere technicality.’” Hardin, 

2012 WL 6727533, at *3 (quoting In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 

1362314, at *8 (Tenn. Ct. App. May 15, 2009)). Such “findings and conclusions 

facilitate appellate review by affording a reviewing court a clear understanding of the 

basis of a trial court’s decision.” Lovlace v. Copley, 418 S.W.3d 1, 34 (Tenn. 2013). In 

the absence of sufficient findings and conclusions, “‘this court is left to wonder on what 

basis the court reached its ultimate decision.’” In re K.H., 2009 WL 1362314, at *8 

(quoting In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. 

Ct. App. Apr. 21, 2004)). There is no bright-line test by which to assess the sufficiency of 

the trial court's findings, but “the findings of fact must include as much of the subsidiary 

facts as is necessary to disclose to the reviewing court the steps by which the trial court 

reached its ultimate conclusion on each factual issue.” Lovlace, 418 S.W.3d at 35 

(quoting 9C Federal Practice & Procedure § 2579, at 328). Here, we are left to wonder 

not only how the trial court reached its determination that the parties could not co-parent, 

but we are also left to wonder whether the trial court applied the statutory factors in 

reaching its decision. We concede that the trial court appears to apply statutory factor 

two in stating that Wife has been the primary caregiver for the child. From the record, 

this is true; however, it is also true that the parties intentionally arranged their marriage so 

that Husband would be the primary breadwinner, and Wife would stay at home. In this 

regard, the trial court failed to consider Husband’s contributions to the care and support 

of the child. Moreover, the trial court again faults Husband for his decision not to seek 

out-of-town employment so that he can spend more time with the child. While the trial 

court may certainly consider this choice in its finding that Husband is voluntarily 

underemployed, the decision may actually weigh in Husband’s favor concerning his 

desire to parent the child. In fact, the trial court seems to suggest just that—“While this

[i.e., Husband’s decision not to accept out-of-town employment] would be laudable under 
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other circumstances, such as the parties were cordial to each other and money was not an 

issue, those are not the facts of this case.” 

More egregious, however, is the fact that the trial court’s order is silent concerning 

the child’s best interest, which is the gravamen of any custody determination and 

parenting plan. Tenn. Code Ann. §§ 36-6-106(a), -404(b) (requiring custody 

determination and parenting plan to be in the best interest of child). The absence of any 

finding concerning the child’s best interest is, by itself, reversible error.

In view of the number of statutory factors, supra, and the importance of the court’s 

ultimate decision concerning the best interest of the minor child, the trial court’s findings 

are not sufficient either to support its refusal to enter the parties’ proposed parenting plan, 

or to support the parenting plan arrived at by the trial court. Perhaps the trial court’s 

truncated findings are due to the lack of evidence in the record concerning the statutory 

factors and the child’s best interest. Regardless, we vacate the trial court’s permanent 

parenting plan. If, on remand, the trial court declines to enter the parties’ agreed plan, 

then it is instructed to make sufficient findings concerning the child’s best interest in 

view of the statutory factors. To this end, the trial court will likely need to reopen proof 

to allow the parties to develop a record on this question.

In view of our modification of the parties’ respective imputed incomes, supra, and 

our determination that the trial court erred in failing to adopt the parties’ parenting 

agreement absent further findings and/or proof, we vacate the trial court’s calculation of 

child support. On remand, the trial court is instructed to recalculate child support in light 

of our holdings herein.

VII. Alimony

Tennessee recognizes four types of spousal support: (1) alimony in futuro, (2) 

alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code 

Ann. § 36-5-121(d)(1). A court may award rehabilitative alimony, alimony in futuro, 

transitional alimony, or alimony in solido “or a combination of these, as provided in this 

subsection (d).” Id. However, as the statute expressly provides, the discretion to award 

“a combination of these [types of alimony]” is subject to “subsection (d),” which states 

that “[t]ransitional alimony is awarded when the court finds that rehabilitation is not 

necessary, but the economically disadvantaged spouse needs assistance to adjust to the 

economic consequences of a divorce, legal separation or other proceeding where spousal 

support may be awarded, such as a petition for an order of protection.” Tenn. Code Ann. 

§ 36-5-121(d)(4). As explained by the Tennessee Supreme Court:

[R]ehabilitative alimony is intended to assist an economically 

disadvantaged spouse in acquiring additional education or training which 

will enable the spouse to achieve a standard of living comparable to the 

standard of living that existed during the marriage or the post-divorce 

standard of living expected to be available to the other spouse. See Tenn. 
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Code Ann. § 36-5-121(e)(1). See also Robertson [v. Robertson], 76 

S.W.3d [337,] at 340-41 [(Tenn. 2002)]; Riggs [v. Riggs], 250 S.W.3d 

[453,] at 456 n. 4 [(Tenn. 2002)]. Rehabilitative alimony thus serves the 

purpose of assisting the disadvantaged spouse in obtaining additional 

education, job skills, or training, as a way of becoming more self-sufficient 

following the divorce. Robertson, 76 S.W.3d at 340-41; Isbell v. Isbell, 816 

S.W.2d 735, 738–39 (Tenn.1991). . . .

The fourth category of support, transitional alimony, is appropriate 

when a court finds that rehabilitation is not required but that the 

economically disadvantaged spouse needs financial assistance in adjusting 

to the economic consequences of the divorce. Tenn. Code Ann. § 36-5-

121(d)(4), (g)(1); Riggs, 250 S.W.3d at 456 n. 5. Simply put, this type of 

alimony “aid[s] the person in the transition to the status of a single person.” 

Mills v. Mills, No. M2009-02474-COA-R3-CV, 2010 WL 3059170, at *5 

(Tenn. Ct. App. Aug. 4, 2010); see also Montgomery v. Silberman, No. 

M2009-00853-COA-R3-CV, 2009 WL 4113669, at *2 (Tenn. Ct. App. 

Nov. 24, 2009) (affirming trial court’s award of transitional alimony to wife 

“to bridge the gap, so to speak, between her married life and single life”); 

Engesser v. Engesser, 42 So.3d 249, 251 (Fla. Dist. Ct. App. 2010) (en 

banc) (describing transitional alimony as “[b]ridge-the-gap alimony” 

designed to “smooth the transition of a spouse from married to single life”). 

In contrast to rehabilitative alimony, which is designed to increase an 

economically disadvantaged spouse’s capacity for self-sufficiency, 

transitional alimony is designed to aid a spouse who already possesses the 

capacity for self-sufficiency but needs financial assistance in adjusting to 

the economic consequences of establishing and maintaining a household 

without the benefit of the other spouse’s income. As such, transitional 

alimony is a form of short-term support. 

Gonsewski v. Gonsewski, 350 S.W.3d 99, 108-109 (Tenn. 2011).

Although “[t]here are no hard and fast rules for spousal support decisions,” 

Anderton v. Anderton, 988 S.W.2d 675, 682-83 (Tenn. Ct. App. 1998), in determining 

whether to award spousal support, the trial court is required to consider “all relevant 

factors,” including:

(1) The relative earning capacity, obligations, needs, and financial 

resources of each party, including income from pension, profit sharing or 

retirement plans and all other sources;

(2) The relative education and training of each party, the ability and 

opportunity of each party to secure such education and training, and the 

necessity of a party to secure further education and training to improve such 

party’s earnings capacity to a reasonable level;
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(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but not limited to, 

physical disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek 

employment outside the home, because such party will be custodian of a 

minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and 

intangible;

(8) The provisions made with regard to the marital property, as defined in 

§ 36-4-121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible 

contributions to the marriage as monetary and homemaker contributions, 

and tangible and intangible contributions by a party to the education, 

training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its 

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are 

necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). Although the court must consider all relevant factors, 

the two most important are the need of the disadvantaged spouse and the obligor spouse’s 

ability to pay. Gonsewski, 350 S.W.3d at 110 (Tenn. 2011) (citations omitted).

In reviewing a trial court’s award of alimony, we employ the standard set out by 

the Tennessee Supreme Court in Gonsewski:

[A] trial court’s decision regarding spousal support is factually driven and 

involves the careful balancing of many factors. Kinard v. Kinard, 986 

S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew [v. Burlew], 40 

S.W.3d [465], 470 [ (Tenn. 2001)]; Robertson v. Robertson,76 S.W.3d 

337, 340-41 (Tenn. 2002). As a result, “[a]ppellate courts are generally 

disinclined to second-guess a trial judge’s spousal support decision.” 

Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in 

reviewing an award of spousal support is to determine whether the trial 

court applied the correct legal standard and reached a decision that is not 

clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 

(Tenn. 2006). Appellate courts decline to second-guess a trial court’s 

decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An 

abuse of discretion occurs when the trial court causes an injustice by 

applying an incorrect legal standard, reaches an illogical result, resolves the 

case on a clearly erroneous assessment of the evidence, or relies on 

reasoning that causes an injustice. Wright ex rel. Wright v. Wright, 337 
- 29 -

S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 

335 (Tenn. 2010).

Gonsewski, 350 S.W.3d at 105 (footnote omitted)

In its final decree of divorce, the trial court considered the statutory factors and made 

the following findings concerning alimony:

a. The relative earning capacity, obligations, needs and financial 

resources of each party, including income from pension, profit sharing 

or retirement plans and all other sources.

The Court finds that both these parties have substantial 

earning capacity, but Husband historically more so than Wife 

due to his job history and Wife being an “at-home” mom. 

The Husband has been the breadwinner, earning salaries and 

assets and acquiring the bulk of the debt of these parties. The 

Wife also has need for assistance from Husband based upon 

the lifestyle they enjoyed while married.

b. The relative education and training of each party, the ability and 

opportunity of each party to secure additional education and training, 

and the necessity of a party to secure further education and training to 

improve such party’s earning capacity to a reasonable level.

The Husband has a Master’s degree; the Wife has a J.D. and 

an LLM. Neither has requested any further education, except 

that Wife will likely have to take continuing legal education 

classes to bring her legal skills up to speed and to make her 

competitive in the job market. There are defined limits on 

either of these parties’ ability to earn. Their earning capacity 

is not limited.

***

d. The age and mental condition of each party.

Husband is fifty-three (53) years old and Wife is forty-seven 

(47) years old. There was no proof that either party had any 

mental health condition, although Husband testified that Wife 

was depressed and suicidal. The Court makes no use of this 

unsubstantiated lay medical testimony. The Court finds that 

there is insufficient proof to do more than note this testimony.

***
- 30 -

f. The extent to which it would be undesirable for a party to seek 

employment outside the home, because such party will be custodian of 

a minor child of the marriage.

The parties have a minor child who is ten (10) years old and 

requires adult supervision. The Wife has traditionally and 

historically not worked outside the home. No argument was 

put forth that the child no longer needed or required the full 

attention of an unemployed parent. While the Husband 

testified that he has encouraged Wife to work, he, in 

accordance with his religious faith, accepted her role in the 

home as homemaker and he has been the provider for this 

family.

g. The separate assets of each party, both real and person[al], tangible 

and intangible.

The Court makes reference to the separate property that has 

been awarded to each of these parties, the assets that have 

been divided, both real and personal, and the amount and 

value of the liquid assets that each of these parties have been 

awarded . . . .

***

i. The standard of living of the parties established during the marriage.

The Court finds that the parties established a standard of 

living during the marriage that allowed them to own real 

property by way of residences both in Tennessee and Texas, 

to travel rather extensively, and purchase as they desired. 

They were able to do all this while living within their means. 

Only the Husband worked and, after he lost his full time 

position in 2014, the parties began liquidating assets to meet 

their expenses. The problem is that this standard can no 

longer be maintained as the parties are currently situated.

j. The extent to which each party has made such tangible and intangible 

contributions to the marriage as monetary and homemaker 

contributions intangible and tangible contributions by a party to the

education, training or increased earning power of the other party.

Husband worked and provided financially for the family and 

Wife was a dutiful wife and homemaker. Both parties 

contributed financially to the marriage. Husband contributed 

through his employment. Wife contributed as a homemaker 

and caretaker of the parties’ child. In addition, Wife 
- 31 -

contributed some of her separate savings to pay marital 

expenses as well as the down payment on the marital 

residence. Wife also earned her JD and LLM, in 2008, during 

the course of the marriage.

k. The relative fault of the parties, in cases where the Court, in its 

discretion, deems it appropriate to do so.

The Court finds that each of the parties [was] at fault for the 

breakdown of the marriage with the underlying factor being 

that neither party is willing to compromise.

l. Such other factors, including the tax consequences to each party, as are 

necessary to consider the equities between the parties.

The Court finds that Wife is the economically disadvantaged 

spouse and that she has demonstrated a need for alimony. 

Wife has been a stay at home mom and Husband has the 

greater earning capacity at this point. Husband has the ability 

to pay alimony to Wife.

Based on the foregoing findings, the trial court awarded Wife alimony as follows:

17. Rehabilitative alimony is favored in Tennessee, and is suitable for the 

facts of this case. While there has been no indication that Wife intends to 

seek additional education and/or training for a job or position, the testimony 

was that she needed to gain experience and will likely need to take CLE 

classes to become comfortable with the law. The Court finds that one year 

of rehabilitative alimony at a rate of $500 per month should be sufficient 

for Wife to be rehabilitated in accordance with her skills and training. . . .

18. Transitional alimony is appropriate when the economically 

disadvantaged spouse needs assistance due to the economic consequences 

of divorce. Its intent is to enable the economically disadvantaged spouse to 

adjust to the economic consequences of divorce. The Court finds that it is 

appropriate to award Wife transitional alimony in this case as she needs 

assistance transitioning from a stay at home mom to the workforce, all 

while she serves as care taker for the parties’ child. The child is ten (10) 

and needs to be taught independence while he adjusts to the shared 

parenting arrangement. Wife shall have three (3) years in which to 

transition into the workforce, taking into consideration that the child will be 

older and she will have taken the appropriate CLE classes and started her 
- 32 -

journey back into the workforce.

19. Accordingly, the Court awards transitional alimony to Wife in the 

amount of $2,000 per month for a period of thirty-six (36) months. . . .

***

21. The Court finds that Wife has incurred attorney fees and litigation costs 

in this case in excess of $25,000. The Court finds that Husband shall be 

responsible for $25,000.00 of Wife’s attorney’s fees and litigation expenses 

which is awarded as alimony in solido . . . .

In the first instance, the trial court’s award of both rehabilitative and transitional 

alimony in this case was error. Clearly, Wife does not need to be rehabilitated. She has a 

J.D., an L.L.M., and a Tennessee law license. Although, as the trial court finds, “Wife 

will likely have to take continuing legal education classes to bring her legal skills up to 

speed and to make her competitive in the job market,” continuing legal education is a 

requirement for most attorneys in this State. If she chooses law, Wife will be continually 

learning throughout her career. Accordingly, Wife is not in need of rehabilitation, and 

the trial court’s award of rehabilitative alimony is reversed.

Because Wife has not practiced law since receiving her degree, we concede that 

she will require a certain amount of reeducation; however, given her current level of 

education, she should be able to achieve this goal in relatively short order. To that end, 

we conclude that the trial court’s award of transitional alimony and the duration of same 

was correct. However, in view of our previous holding concerning the parties’ imputed 

incomes and the classification of certain marital property, we vacate the amount of 

transitional alimony and remand for recalculation of same.

As to the award of alimony in solido, due to Wife’s current lack of employment, 

her need for transition, and in view of the equities between the parties, we affirm the trial 

court’s award of alimony in solido in the amount of $25,000.

VIII. Attorney’s Fees on Appeal

Wife seeks her appellate attorney’s fees under Tennessee Code Annotated section 

36-5-103(c), which provides:

The plaintiff spouse may recover from the defendant spouse, and the spouse 

or other person to whom the custody of the child, or children, is awarded 

may recover from the other spouse reasonable attorney fees incurred in 

enforcing any decree for alimony and/or child support, or in regard to any 
- 33 -

suit or action concerning the adjudication of the custody or the change of 

custody of any child, or children, of the parties, both upon the original 

divorce hearing and at any subsequent hearing, which fees may be fixed 

and allowed by the court, before whom such action or proceeding is 

pending, in the discretion of such court.2

In Malkin v. Malkin, 475 S.W.3d 252, 263-64 (Tenn. Ct. App. 2015), this Court 

explained:

Tennessee Code Annotated section 36-5-103(c) provides for awards of 

“reasonable attorney fees incurred in enforcing any decree for alimony,” in 

the discretion of the court. Pursuant to this statute, a court may award 

attorney’s fees to an alimony recipient who is forced to defend an action to 

reduce or terminate that alimony. Henderson v. Henderson, No. M2013-

01879-COA-R3-CV, 2014 WL 4725155, at *12 (Tenn. Ct. App. Sept. 23, 

2014) (citing Evans v. Evans, M2002-02947-COA-R3-CV, 2004 WL 

1882586, at *13-14 (Tenn. Ct. App. Aug. 23, 2004)); see also Owens v. 

Owens, No. M2012-01186-COA-R3-CV, 2013 WL 3964793, at *6 (Tenn. 

Ct. App. July 30, 2013), perm. app. denied (Tenn. Nov. 13, 2013) 

(“Reasonable fees may be awarded pursuant to § 36-5-103(c) in actions to 

enforce a decree for alimony, which has been interpreted as including the 

situation where an alimony recipient is forced to defend an action to reduce 

or terminate that alimony.”). The statute authorizes awards of attorney’s 

fees incurred at trial as well as on appeal. Henderson, 2014 WL 4725155, 

at *12. The decision of whether to award attorney’s fees incurred on appeal 

is a matter within the discretion of this Court. Yattoni–Prestwood v. 

Prestwood, 397 S.W.3d 583, 597 (Tenn. Ct. App. 2012) (citing Archer v. 

Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995); Seaton v. Seaton, 516 

S.W.2d 91, 93 (Tenn. 1974)).

Simply put, this statute “authorizes courts to award reasonable attorney’s fees to the 

prevailing party in an action to enforce any decree for alimony, child support, or child 

custody.” Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017).

“Appellate courts have discretionary authority to award a spouse ‘reasonable 

attorney fees incurred in enforcing any decree for alimony’ regardless of whether the fees 

are incurred at the original divorce hearing or at any subsequent hearing.” Moon v. 

Moon, No. E2015-01470-COA-R3-CV, 2016 WL 1605511, at *8 (Tenn. Ct. App. Apr. 

21, 2016) (quoting Tenn. Code Ann. § 36-5-103(c)); see, e.g., Parker v. Parker, No. 

E2018-00643-COA-R3-CV, 2019 WL 1531667, at *6 (Tenn. Ct. App. Apr. 9, 2019) 

 

2

The statute was amended effective July 1, 2018, but the amended version only applies 

“to actions commenced on or after that date.” 2018 Pub. Acts, c. 905, § 1.
- 34 -

(considering an appeal from a divorce trial and awarding the wife attorney’s fees because 

she “should not be required to use her limited resources to pay for the defense of the trial 

court’s award to her of . . . long-term spousal support”); Henderson, 2014 WL 4725155, 

at *12 (awarding the wife attorney’s fees she incurred on appeal from a divorce 

proceeding when defending against the husband’s attempt to reduce or terminate his 

alimony obligation).

In light of the issues involved in this litigation, the respective financial positions of 

the parties, and the resolution of the parties’ respective appellate issues, we exercise our 

discretion to deny Wife’s request for an award of her reasonable appellate attorney’s fees 

and expenses on appeal.

IX. Conclusion

For the foregoing reasons, we: (1) affirm the trial court’s characterization of the 

Ameritrade IRA as both marital and separate property; (2) modify the trial court’s 

calculation of the portion of the Ameritrade IRA comprising Husband’s separate property 

to $52,960.02; (3) remand for the remaining balance on the Ameritrade IRA account, 

including any accrual or loss during the pendency of this appeal, to be equitably divided 

as marital property; (4) reverse the trial court’s holding that the Texas Property is part 

Husband’s separate property and remand for an equitable division of same as marital 

property; (5) affirm the imputation of income to the parties as modified herein; (6) vacate 

the parenting plan and remand for sufficient findings justifying the trial court’s deviation 

from the parties’ agreed plan and/or for further proof; (7) reverse the amount of child 

support based on our modification of imputed income and remand for re-calculation of 

child support in view of our modification and/or in view of any changes to the parenting 

plan; (8) reverse the award of rehabilitative alimony; (9) affirm the award of transitional 

alimony and the duration of same; (10) vacate the amount of transitional alimony 

awarded based on the modification of imputed income and division of property and 

remand for re-calculation of same; (11) affirm the award of alimony in solido; (12) deny 

Wife’s request for attorney’s fees on appeal. The trial court’s order is otherwise 

affirmed, and the case is remanded for the foregoing purposes and for further proceedings 

as may be necessary and are consistent with this opinion. Costs of the appeal are 

assessed one-half to the Appellant, John Andrew Wright, and one-half to the Appellee, 

Belinda Bentley Wright, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE