### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON N ove mb er

18, 200 8 S es sio n
CA ROL AN N V ICK WA TSON

v . FRANK LEE W ATSON, J R.
Appeal from the Chancery Court for Shelb y County No. CH-01-2398- 1 WalterL. Evan s, Chancellor

No. W2007-02735-COA- R3-CV - Filed May 27, 2009

Th is i s th e se c on d a

pp e a l in thi s d ivo rc e c a se . T he hu sb a ndis a law yer andthewi fewa s a homemaker

during most of the marriage. Af ter the divorc e trial, the trial court divided the marital estate, a war ded the wif

e tra nsitional alimony, and ordere d eac h party to pay his or her own attorne y’s fee s. T h e wi fe appealed and the husband cr oss-appe aled. I n the first appe al, the appe llate court
reve rsed the trial court’s va luation of two marital assets, stock and a corpor ation, and re manded f or the trial court to re-va lue those asse ts. In addition, the trial court’ s decision re garding the husband’s alleged dissipation of marital assets was r ever sed, and that issue was re manded to the tria l court for

rec onsideration as w ell. The iss ues raised on alimony and attorney’s fees were not addr essed in the first appe al. On re mand, the trial co u rt fo u n d a d eb t owed by the c orporation to the husband was uncollectible a nd determined that the value of the corpor ation was zer o. The trial c ourt adjusted the valuation of the w ife’s inter est in the stock and e ngaged in a detailed an al y s i s o f t he husband’ s alleged dissipation of marital assets, finding no dissipation. On rema nd, the wife sought an awa rd of alimony in f

utu ro

. The trial c ourt dec lined to awar d alimony in f utu ro but awar ded the wif e an additional year

of transitional alimony. Finally, the trial court dec lined the wife ’s re qu est for he r
a tto rn e y’ s f

e e s. Both part ie s now app e a l. W e a ff irm th e tria l c ou rt ’s fi nd ing that th e hu sb a nddid not engage in dissipation, aff irm the trial court’s incre ased property a war d to the wife, r efle cting her interest in the stock, re verse the trial court’s finding that the value of the cor p o ra t i o n i s zero, and

rema nd to the trial court f or valuation of the corpor ation and division of that asset, modify the trial court’s a ward of alimony by awa rding the wife alimony in f utu ro wh e n th e tr a ns iti on a l a lim on y e nd s,
a ff irm th e tria l c ou rt ’s re fu sa l to a wa rdthewi fehe r atto rn e y’ s f e e s, and ord er the a wa

rdof po stjudgment interest on the wife’ s incre ased property a war d from the stock, dating from the date of the judgment on remand.
Tenn. R. App . P. 3 Appeal as of Right ; Judgment of the Circuit Court Affir med in Part, Re ve r se d in P ar t, M odi fi e d, a nd R e ma nde d

H OL LY M. K I RBY , J., delivere d the opinion of the Court, in which A LA N E. H I G H ERS , P.J., W.S , and J. S TE VE N S TA F F OR D , J., joined.Rande l l Cor por at i on i s a c om m odi t i es t r adi ng a nd c at t l e r anc h ope r at i ng e nt i t y l oca t ed on s ubs t ant i al a cr ea ge 1
in M ississip p i.

-2- David E. Caywood an d Ho l l y Jackson Renke n, Memphis, Tennesse e, for the Plaintiff/Appellant Carol Ann Vick W atson
Sam Berry Blair a nd Betty Campbell, Memphis, Tennesse e, for the Def endant/Appe llee Frank Le e Watson, Jr.

OP IN ION

F ACT S AND P R OC EDU R A L H I S T ORY

This is the s ec ond appea l in the divorce of Plaintiff/Appellant Carol Ann Vick W atson (“W ife” ) and D efe ndant/Appellee Frank LeeWatso n , J r. (“Husband” ). The f acts in this case are more fully set forth in our first opinion. See Watson v. Watson , No. W2004- 01014-COA-R3-CV, 2005 WL 1882413 (T enn. Ct. App. Aug. 9, 2005).

Wife filed the initial complaint for divorce and Husband counter claimed. At the time of the divorce trial below, Husband was sixty-threeyear s old and Wife was fif ty-six year s old. H usband is a sh are ho lde r w iththela w f irm of Bake r, Do ne lso n, Be arm a n, Ca ldw e ll & Be rk ow itz , e arn ing in the ra n g e of $300,000 per year . Wife had bee n employed as a securities and commodities trader

so me tw e nty ye ars e arl ie r, bu t up on thepa rt ie s’ a gr e e me nt q uit

to stay ho me a nd c are fo r the pa rt ie s’ learning-disabled son. The parties’ marital assets included the marital home, ten unit s o f V ining Sparks IBG stock, a nd a cor poration owned by Husband, Randell Corporation. During the marria ge, Husband be came romantica lly i n v olved with a par alega l in his l aw f irm; Wife a sserted that Hu sb a nd ’s e xp e nd itu re s r e late d to thi s r e latio ns hip we rea dis sip a tio n o f m ari ta l a sse ts.

After the trial, the trial court filed its findings of fac t and conclusions of law on February 17, 2004, and ente red the final decree of di vorce on Marc h 17, 2004. The trial c ourt, int e r a lia , divided the marital e state and a war ded Wif e transitional alimony in the amount of $6,000 per month for the fi rs t th re e ye ars a nd $3 ,0 00 pe r mon th fo r the ne xt thr e e ye ars

. Ea c h pa rty wa s o rd e re d to pay h is or he r o w n a tt o r n e y ’ s f

e e s

. W if e ap p e a le d th e tria l c o u rt’ s d e c is io n a n d H u s b a n d c r o s s

- ap p eale d.

In the fir st appea l, the trial court’s valuation of a marital asset, Rande ll Corporation, was 1

reve rsed, and the issue was r emande d. Id. at *14. Specifica lly, the t rial court was asked to consider

on re ma nd the va lue of a re c e iva ble a sse t of Hu sb a nd in the fo rm of a de bt ow ed b y R andel l Corporation to H usband. Id. In the fir st appea l, it was noted that the re port of the spe cial master appointed by the tria l court to make a rec ommendation on Randell Corporation showed a negative asset value for Randell Corporation of approximately negative $119,000. Id. at *9. The ne gative value wa s predicated on Randell Corporation’s indebtedness to Husband in the am o u nt of approximate ly $419,000; however , the trial court d i d n o t i n clude the r ece ivable as an asset of Husband. Id. This was found e rrone ous and re consideration was direc ted on re mand.-3-

Th e tr ial cou rt ’s va luatio n o f ano the r m ari ta l a sse t, V ini ng Spa rk s I BG sto c k w a s a lso

reve rsed. Id. at *14. In d et er mining the net value of the stock, the trial court deducted the tax conseque nces of

a sale of the stock, despite Husband’s testimony that he did not intend to sell t he stock but would instead borrow the money to pay W ife for her inter est in it. Id. at *10.

The trial court’s decision relating to Husband’s alleged diss ipation of marital prope rty was
reve rsed on a

ppeal a s well. Id. at *14. After the divorc e trial, the tria l court dete rmined that any dissipation of m arital assets by Husband would not be considered in the di stribution of the marital estate, noting t hat during the t ime period in which Husband allegedly dissipated marital funds, he provided monies to Wife that exce eded the amount allegedly dissipated. Id. a t *1 2. Th e app e llate
c ou rt int e rp re te d th is a s in dic a tin g th a t th e dis sip a te d ma ri ta l f un ds wo uldno t bec on sid e re d b e c aus e of the monies Husba nd provided to Wifeduring th e s ep ar at i on. This rea soning was found to be

err oneous, and the issue was remanded for the trial court to analyz e Husband’s alleged dissipation in a ccor dance with this Court’s opinion in Wa rd v . W ar d , No. W2001- 01078-COA-R3-CV, 2002 W L 3 1 8 4 5 2 2 9 ( T e n n

. Ct

. A p p

. D e c

. 19, 2002). W atson , 2005 WL 1882413, at *14. Finally, beca use the c ase ha d been r emande d for r econside ration of issues a ffe cting the distribution of marital property, the appellate court de clined to addr ess issues relating to the alimony awa rd t o Wife or the trial court’ s ref

usal to awa

rd her attorney’ s fee s. Id.

On Novemb er 6 , 2 0 0 7, the trial court entere d its findings and order on r emand. The trial court re cognize d the $419,000 loan to Randell as a rec eivable o f Hu s b an d, but determined that Ra nd e ll w a s u na

ble to pay Hu sb a nd the $4 19 ,0 00 it ow e d him

. It fo un d th a t se lli ng Ra nd e ll’ s a sse ts to satisfy its indebtedness to Husband would cost more than $300,000 in taxes, closing costs, and

rea l estate broke rage fee s. This meant that, upon liquidation, Rande ll would have a ne gative value , a ndthe rewo uldbe no mon e y to pay Hu sb a nd

. In lig ht of thi s fi nd ing , the tria l c ou rt re a ff irme d it s prior dete rmination that the value of Randell was zero and that Randell was una ble to pay Husba nd the $419,000 debt. As to the Vining Sparks IBG stock, the t rial court adjusted i ts valuation of onehalf of the stock from a

net value of

$38,500 to $51,500. T his new value included the $13,000 that the trial court had pre viously deducte d as a tax conse quenceof selling one-ha lf of the units of stock.

O n r e m a n d , t h e tr i a l c o u rta l s o e n g a g e d i n a c a re fu l Wa rd an al ysis of Husband’s alleged dissipation of marital assets. In light of its detailed ana lysis, the trial court determined that Wife failed to e stablish a prima fa cie c ase of dissipation, so the burden ne ver shifte d to Husband to show that the expe nditures at issue we re a ppropriate . The trial c ourt n oted that eve n if Wife had established a prima fa cie c ase, the expenditure s would not constitute dissi pation under the Wa rd analysis. In the a lternative, the trial court found that, even if the expenditure s constituted dissipation, this would not change its distribution of the marital estate.

In the p ro ce ed i n g s on remand, W ife sought an a war d of alimony in f utu ro instead of tr a n s it io n a l a li mo n y , n o ti n g H u s b a n d ’ s s u b s tan ti a l e ar n in g s a n d th e f a c t th a t s h e h a d la

r g e ly been out of the workf

orce for twe nty year s. The trial court did not awar d alimony in f utu ro , but awar ded Wife an additional yea

r of transitional alimony i n the amount of $3,000 per month. The trial court declined to r evise its previous orde r denying W i fe an aw ar d o f attorney’s fe es. Wifethen filed a timely notice of appe al to this Court.W i f e al s o as ks t hat t hi s ca s e be r ea s s i gned t o anot her j ur i s t on r em and. H ow eve r , s he ci t es no a ut hor i t y f or 2
th is p ro p o sitio n . W e re sp e c tfu lly d e c lin e th is re q u e st.
-4-

I S S UE S ON A P P E AL AND S TA N D A R D O F REVIEW

Onapp e a l, W if

e raise s th e fo llo wi ng iss ue s: 2

1. W he the r t

he tria l c ou rt

e rr e d infi nd ing that H us ba nd di d no t eng a ge in dis sip a tio n o f the pa

rt ie s’ a sse ts. 2. Whethe r the trial c ourt err ed in conf irming its prior determination that the value of Ra nd ell is z e ro a ndthat Ra nd e ll i s u na bleto p a y th e de bt o we d to Husband. 3. Whethe r the trial c ourt err ed in its distribut ion of the marital pr operty. 4. Wheth e r

th e tria l c o u rt e rr e d inth e a mo u n t an d d u r a ti o n o f a li mony
awa rded to W ife. 5. Whethe r th e t ri al co urt err ed in fa iling to award attorney’s fe es and expense s to Wife. 6. Whethe r the trial court err ed in f ailing to a war d post-judgment interest on th e mo di fic a tio n o f the va lueof theVi nin g Sp ark s I BG sto c k a wa rd e d to Wife

.
Husband also raises two issues for our revie w. He asks us to c onsider whether the trial court erre d in awar ding Wife an additional $13,000 for he r intere st in the Vining Spar ks IBG stock and whe ther the trial court erre d in awar ding Wife se ven yea rs of transitional alimony.

Be cause this case was tried by the trial court sitting without a jury , we r eview the trial court’ s fi nd ing s o f f

a c t de novo upon the re cord w ith a pres u m p t i o n of cor rec tness, unless the evidenc e pr e po nd e rate s o the rw ise . T e nn . R. Ap p. P. 1 3( d) ; Bo ga n v . Bogan , 60 S.W .3d 721, 727 (Tenn. 2001). Som e of

thetria l c ou rt ’s fa c tua l find ing s a reba se d o n it s d e te rm inatio ns of thec re dib ili ty of the wi tne sse s. Th is Cou rt a ff or ds “ gr e a t de fe re nc e ” to the tria l c ou rt ’s c re dib ili ty d e te rm inatio ns

. Keato n v. H

a n co ck Coun ty Bd. of Educ.
, 119 S.W .3d 218, 223 (Tenn. Ct. App. 2003) ( citation omitted). Questions of l aw, howe ver, a re r eviewe d de novo with no presumption of cor rec tness. S. Const ructors, In c. v. L oudon C ount y Bd. of Educ. , 5 8 S

. W.3d 706, 710 (Tenn. 2001) (c itations omitted).-5- A N A L Y SIS Dissipation

W e fi rs t a dd re ss W if

e ’s arg ume nt that the tria l c ou rt e rr e d inc on c lud ing that H us ba nddid

no t e ng a ge in d iss ipatio n o f m ari ta l a sse ts. Th e fact ors for a co urt to c on sid e r w he n e qu ita bly dividing the marital estate include “[t]he contribution of each party to the ac quisiti on, prese rvation, appre ciation, depreciation or dissipati on of the marital or separ ate pr operty.” T.C.A. § 36-4- 121(c) (5) ( 2005) (e mphasis added) . The term “dissipation” is n o t d efined in the statute. Black’s La w D ic tio na

ry de fi ne s it

a s “ [t ]he us e of a n a sse t f or a n il le ga l or

ine qu ita blepu rp os e , s uc h a s a spouse’s use of

community prop er t y fo r persona l benef it when a divorc e is imminent.” B LA CK ’ S L A W D I C TI ONAR Y 486 (7th ed. 1999). T he W ard case outlined the appropriate ana lysis for allegations of dissipation:

Trial courts must di stinguis h b etween what marital expenditure s are wastef ul and self-se rving and those w h i ch may be ill-advised but not so far r emoved f rom “norma l” expe nditures occ urring previously within the m arital relationship to rende r them destructive. Inde te rm ini ng wh e the r d iss ipatio n o c c ur re d, we fi nd

trial court s sh ou ld consider the following: (1 ) whether the e vidence prese nted at trial supports the alleged pur

pose of the va

ri o u s expenditure s, and if so, (2) whether the allege d purpose e quates to dissipation unde r t h e circumstances. The first prong is an objective test. To satisfy this t est, the dissipating spouse c an bring forwar d evidenc e,
su ch as r e c e ipt s, vo uc he rs , c la ims , o r o the r s imi lar e vid e nc e that in de pe nd e ntl y support the pu rpose as alleged. Thesecond pr ong require s the court to make an equitable de termination based upon a number of factors. Those fac tors include: (1) the typicality of the e xpenditure to this marr i ag e; (2) the be nefa ctor of the

e xp e nd itu re , n a me ly, whe the r i t prima ri ly b e ne fi tte d th e marria ge or prima ri ly benef i tted the sole dissipating spouse; (3) the proximity of the e xpenditure to the brea kdown of the ma

rital relationship; (4) the amount of the expe nditure.

Wa rd , 2002 WL 31845229, at *3 (interna l citations omit ted). A spouse who see ks to prove dissipation mus t do so by a preponde ranc e of the evidenc e. See Robinson v. Robinson , No. W2003- 01836-COA-R3-CV, 2005 WL 1105188, at *16 (Tenn. Ct. App. May 9, 2005). E arlier decisions by thi s Co urt di sc us s th e a llo c a tio n o f the bu rd e n o f p ro of wh e redis sip a tio n is a lle ge d:

The burde n of persua sion and the initial burden of pr oduction in showing dissi pation is on the party making the a llegation, and that party retains throughout the burde n of persua ding the court that funds ha ve bee n dissipated, but after that party e stablishes

a prima fa c ie c a se that m on eys hav e be e n d iss ipate d, thebu rd e n s hif ts t o th e pa

rty who spent the money to produc e evide nce s u ff i ci ent to show that the expe nditures

wer e appr opriate.

Wil tse v . W ilt se , No. W2002-03132- COA-R3-CV, 2004 WL 1908803, at *4–5 (Tenn. Ct. App. Aug. 24, 2004) (c iting 24 A M

. J UR

. 2 D Divorce and Separation § 560 (1998))

.Tenn. R. Evi d. 1006. 3

-6- Inthi s c a se , W if

e arg ue s th a t H us ba nddis sip a te d ap pr ox imate ly $21 8, 00 0 inmari ta l a sse ts by spending money on himself and his paramour Houston Anderson (“ Ms. Anderson” ). The r ecor d inc lud e s e vid e nc e that Hu sb a nd pa id fo r the c ou ple ’s me a ls a t re staur a nts , pa id f or va c a tio ns wi th Ms. An de rs on , a ndbo ug ht gi ft s f or he r. Hu sb a nda dmi tte d th a t hesp e nt s omemon ie s o n M s. Ander son, but denied that he dissipated the $218,000 that Wife alleges. Husband testified at tria l that he spend a

pproximately $25,000 on Ms. Ander son.

In the fir st appea l, the i ssue of dissipation was remanded to the t rial court for re consideration beca use it appe ar ed from the f inal order of divorcethat the trial court had re fused to conside r the issue of dissipation. In its original order, the trial court c oncluded that
[a ]n y ma ri ta l f un ds wh ic h [ Hu sb a nd ] m a y h a ve e xp e nd e d f or or on be ha lf

of his paramour, Ms. Houston Ander son, will not be considered by this court as having a ny bearing on the property distributi on, beca use during the s ame pe riod, [Wif e] r ece ived from [H usband] f

unds, greatly in excess of said expenditure , which she used for her own bene fit without accounting to [Husba nd] for same.

On re mand, the trial c ourt clarified its earlier conc lusion on t h e al l eg ed dis sipation, and engage d in a detailed Wa rd analysis of Husband’ s expenditure s. Little weight was given to evide nce submitt ed by Wif

e in the form of the R u l e 1 0 0 6 summaries of Husband’s expe nditures. Inde ed, 3 Wife acknow ledged that he r summaries include d inacc urac ies an d that some seventy- five pe rce nt of the a lleged dissipation e xpenditures we re listed as “ miscellaneous” beca use Wifedid not know what wa s purcha sed or paid for by the e xpenditures. The ref ore, the trial court concluded that Wife had failed to satisfy the first prong of the Wa rd analysis, that i s, failed to present evide nce to support the allege d purpose of

the expe nditures, and c onsequently that the burden never shifted to Husband to show the appropriateness of the expe nditures. Se e Wa rd , 2002 WL 31845229, at *3.

After rea ching this conclusion, the trial court went on to conclude that, even i f Wi fe had satisfied the fir st prong of the Wa rd analysis, the expe nditures at is sue di d not constitute dissi pation under the second pr on g o f t he Wa rd analysis. The tria l court consider ed all four of the fa ctors
enumer ated in the se cond prong of the W ar d analysis. See id. The trial c ourt first addr essed the “typicality” f

actor , that is, whether the expenditure was ty p i cal to the pa rties’ mar riage

. See id. After noting that Husband had admitted to spending approximate ly $25,000 on Ms. Anderson, the trial court obse rved that Husband had spe nt money on simil ar tra vel and mea ls prior to the separ ation and that many of

the expe nditures wer e for a combination of pe rsonal and business purposes. In light of this, t he trial c ourt conc luded that the expe nditures wer e discr et i o n ar y spending that was typical of the pa

rties’ mar riage

. The trial c ourt then addr essed the “ benef actor ” fa ctor, look i n g at wh ether the expe nditure primarily bene fitted the m arriage or the allege d dissipating spouse. See id. The trial c ourt determined that Wife indirectly bene fitted from Husband’ s e x p e n d it u r e s b e c a u se much of the m were for a combination of per sonal and business purposes, thus enabling Husband to provide W ife temporary support while the parties weresepar ated.-7-

The trial c ourt n ex t l o o k ed at the proximity of the expe nditure to the bre akdown of the marital re lationship. See id. T h e trial court f ound that the majority of the e xpenditures oc curr ed

a ft e r thema

rria ge wa s ir

re trie va bly br ok e n, c on c lud ing that th is Wa rd fa c tor a lso we igh e d a ga ins t finding dissipation.
Finally, the t rial court discussed t he “amount” of the expenditures at issue. See id. The trial court re iterate d that i t g ave litt le weight to Wife ’s evidenc e of dissipation and observed that the $25,000 that Husband testified h e s pent on Ms. Ander son was small in relation to the pattern of

s p e n d in g inth is ma

r r ia g e

. A f te r r e v ie w in g a ll o f

the Wa rd

fac tors, the trial court concluded that Husband’s e xpenditures did not constitute dissipation.

Wife ch al l en ges the trial c ourt’s findings on remand relative to the dissipation is sue. She

arg ue s tha t Hus ba nd ’s e xp e nd itu re s w e reno t ty pic a l, that sh e didno t be ne fi t f ro m th e e xp e nd itu re s, that the expe nditures occ u rr ed at times when the c ouple was ha ving marital trouble, and that the dissipation was substantial, amounting to approximately $218,000.
In finding t hat Husband did not enga ge in dissipation of marital assets, the tria l court applied the standard set forth in Wa rd in acc ordanc e with our pre vious decision. See Watson , 2005 WL 1882413, at *13. The trial court appa rently cr edited Husba nd’s testimony on this i ssue and ga ve littl e weight to Wife ’s R ule 1006 summaries. Explicitly applying the Wa rd fac tors, the trial court determined that Husband’s e xpenditures we re discr etionary spe nding, n o t d i s sipation. After

car efully re viewing the record on a ppeal, and giving appropriate defe renc e to the trial c ourt’s determinations on the parties’ c redibility, we find that the evidenc e supports “the trial court’ s fac t and cre dibilit y driven de cision on the dissipation iss ue.” La ne v . L ane , No. M2000-01135-COAR3- CV , 2 00 1 W L 1 52 33 65 , at *3 (T e nn . Ct . Ap p. Nov

. 30 , 200 1) (c itatio n o mitte d) . T his conclusion is based on the t ri al court’s application of the Wa rd fac tors, not the fac t that Husband provided support to Wifein exce ss of the amounts allege dly dissipated. Se e Watson , 2005 WL 1882413, at *13. Onthi s b a sis , w e a ff irm th e tria l c ou rt ’s fi nd ing that H us ba nd ’s e xp e nd itu re s d id not constitute dissi pation.

Stock

Husband a

rgues on a

ppeal that the trial court err ed in a war ding W ife an additional $13,000 for he r intere st in t h e Vi ning Sparks IBG stock. Husband note s that if Wife wer e to re ceive any share s of the Vining Sparks IBG stock, she would be require d to se ll them back to Mr. V ining and Mr . Sp ark s u nd e r the te rm s o f the part ners hi p a gr e e me nt; in this c a se , tax li abil iti e s w ou ld r e su lt, making the trial court’s original awa rd of $38,500 to Wife, r efle cting the tax conse quence s, proper

. In this case , howeve r, the trial court did not or der that the stock be transfer red to W ife. Rather , the trial court a war ded H u s band the ten units of stock and awa rded W ife ha lf of the ne t value of the stock. Because Husband te stified that he did not intend to se ll the stoc k and the tria l court did not order that it be sold, we af

firm the trial c ourt’s dec ision on thi s issue. See id. at *9–10.

Randell Corporation-8-

We ne xt addre ss whether the trial court erre d in confirming it s p ri o r dete rmination that Ra nd e ll Co rp or a tio n is un ableto pay the de bt it ow e s to H us ba nd , a ndthat th e valueof theRa nd e ll Corporation is zer o. The trial court’s valuation of a marital asse t is a question of fac t and is entitled to a pre sumption of corre ctness. Wa tte rs v . W atte rs , 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997) (citation omitted).

Inthefi rs t app e a l, w e no te d th a t
[t ]h e am o u n t o f this loan at the time of trial wa s $419,481.23, and the spec ial master’ s testimony and repor t states that, if the court should adopt the - $119,111.00 [valuation] for the Rande ll Corporation, it must also rec o gnize a corr esponding

rec eivable a sset to Husband in this amount. If the tri al co urt did not recogniz e the loan a s a re c e iva blea sse t f or Hu sb a nd , th e sp e c ia l ma ste r s tate d th a t th e loan s ho uld

no t bere c og niz e d a s a

c or po rate lia bil ity in c a lc ulating the va lueof theRa nd e ll Corporation.

Watson , 2005 WL 1882413, at *9. On rema nd, the trial court found:

4. Th e e vid e nc e esta bli sh e d th a t Re c e iva

ble[t he c or po ratio n’ s d e bt t o Husband] c ould not be paid by Randell to [H] usb and eve n with the liq uid a tio n o f a ll o f R a nd e ll’ s a ss ets inc lud ing thela ndthat is Ra nd e ll’ s main a sse t. 5. [Husband] and the Spec ial Master te stified that the cost of liquidation

. . . wo uld e xc e e d $3 00 ,0 00

. . . . Th us up on liq uidat io n, Ra nde ll would have a

negative va lue in exce ss of $419,000 and thus could not pay the Rec eivable. * * * 7. Ba se d u po n th e e vid e nc e be fo retheCou rt , it was de te rm ine d th a t, taking into account the ne gative $119,111.00 value of Randell, no fu nd s w ou ld r e ma in t o pay the Re c e iva ble a ft e r d e du c tio n o f the c os ts of selling Randell’s assets and, thus, the value to the marital estate of the Rece ivable wa s zer o. 8. Based on this Court’s revie w of the undisputed testimony, this Court

. . . rec onfirms its prior determination that the value of Randell is zero and Rande ll is unable to pay any money to [H usband].

Th us , th e tria l c ou rt

fo un d th a t, i n o rd e r t o pa y its de bt to Hus ba nd , Ran de ll wou ld h a ve to l iqu idate its assets. Howeve r, if Rande ll liqui d at ed its assets, the costs would consume the pr ocee ds of liquidation. This l eft Rande ll unable to pay the de bt to Husband by liquidation or otherwise. From this , th e tria l c o u rt d e te r mi n e d th a t ( a ) H u s b a n d ’ s r e c e iv ab le f r o m Ran d e ll w a s w o rth le s s , a n d (b) the value of

Randell Corporation wa s zer o.

Based on the undisputed testimony from both Husband and the Special Master rega rding the cost of liquidating Randell’s assets, the pr eponder anceof the e v i d en ce s u p p orts the trial court’sT h e a p p e llate re c o rd d o e s n o t in c lu d e e v id e n c e o f th e ta x c o n se q u e n c e s to R a n d e ll C o rp o ra tio n o f h a v in g it s 4 $ 4 1 9 ,0 0 0 d e b t t o H u sb a n d in e ff e c t “f o rg iv e n .”

T en n esse e C o d e A n n o t ated § 3 6 -4 -1 2 1 (a)(1 ) rea d s i n p erti n en t p art as fo l l o w s: 5

In all ac t i o n s fo r d i v o rce o r leg al se p ara t i o n , t h e c o u rt h av i n g j u ris d i cti o n t h ere o f m ay , u p o n req u est of e i t her par t y, and pr i or t o any det er m i nat i on as t o w het her i t i s appr opr i at e t o or der t he s uppor t a nd

m a in te n a n c e o f o n e (1 ) p a rty b y th e o th e r, e q u itab ly d iv id e , d istrib u te o r a ssig n th e m a rita l p ro p e rty b e tw e e n th e p a rtie s w ith o u t re g a rd to m a rita l fa u lt in p ro p o rtio n s a s th e c o u rt d e e m s ju st.

T

. C

. A

. § 3 6 -4-1 2 1 (a)( 1 ) ( 2 0 0 5 ).
-9- finding that Randell is unable to pay it s debt t o Husband. Thus, the t rial court’s conclusion that “the value to the marital estate of the Rece ivable wa s zer o” is well-f ounded.

Ho we ve r, thetria l c ou rt

fo un d at th e sa me tim e that “ the va lueof Ra nd e ll i s z e ro .” Th e re in lies the problem. At trial, Spec ial Master Lynn E vans testified that Randell’s debt to Husband ha d to be treated the same way on Husband’s persona l ba lance sheet a nd Randell Corporation’s ba lance sh e e t:

Th e app ro priate ma nn e r t o h a ndle [R a nd e ll Co rp or a tio n’ s d e bt t o H us ba nd ] w ou ld be to treat it the same way f or both sets of books. If

it’s set up as a liability in the corpor ation, then it would be appr opriate f or it to be on the persona l. If it’s lef t off the per sonal, it should also be left off the corpor ation.

He re , th e tria l c ou rt

pr op e rl y f

ou ndthat Ra nd e ll w a s si mpl y u na bleto p a y it s d e bt t o Hus ba nd . T his in effe ct re moved the re ceiva ble from Husband’s list of assets. To be consistent, if Randell is not expec ted to pay its debt to Husband, then, a s we s t at ed in the prior appe al in this case, “ the loan should not be recognize d as a corpor ate liabili ty in calc ulating the value of t he Rande ll Corporation.” See id.

Ha d Rand e ll c or

po ratio n b e e n r e qu ir e d to pay Hu sb a ndthe$4 19 ,0 00 de bt i t ow e d to him , the Special Ma ster found that Randell’s value would be a ne gative $119,000. If Randell will not be require d to pay the debt, the $419,000 amount of the liability must be adde d back into the va lue of the cor poration, giving Ra

n d e lla p ositive asset valuation of some $300,000. Thus, while Husband’ s 4

re c e iva blefr om R a nd e ll Co rp or a tio n may b e wo rthle ss, Ra nd e ll Co rp or a tio n it se lf is n ot, a ndwo uld be c on sid e re d a n a sse t, a wa rd e d to Hu sb a nd in the pr op e rty div isi on , wi th a va lueof app ro xim a te ly $300,000.
In light of these findings, we now consider Wife ’s ar gument on appea l that the trial court

e rr e d inits dis tribu tio n o f the mari ta l pr op e rty. Th e div isi on of mari ta l pr op e rty indiv or c e c a se s is governe d by Tenne ssee Co d e An n o t ated § 36-4-121, which ge nera lly provides that the trial court is to divi de the pr operty e quitably without rega rd to fault. The trial c ourt has substantial discre tion

5I n e qui t abl y di vi di ng t he m ar i t al e s t at e, t he t r i al c our t i s t o c o n si d er “ al l r el eva nt f ac t or s , ” i ncl udi ng t he 6
f ol l ow i ng:

( 1) Th e durat i on of t he m ar r i age; ( 2) Th e a ge, p h y si ca l and m ent al heal t h, vocat i on al s ki l l s , em pl oy abi l i t y, ea r ni ng ca paci t y, es t at e, fina n cial l i ab i l i t i es a n d fi n an cial n ee d s o f ea ch o f t h e p arti es; ( 3) Th e t an g i b l e or i nt angi bl e c on t r i bu t i on by o ne ( 1) par t y t o t he educat i on , t r ai ni ng or i ncre as ed

ea r ni ng pow er of

t he ot her pa r t y; ( 4) Th e r el at i ve abi l i t y of ea ch part y for f ut ure acqui s i t i on s of capi t al as s et s and i ncom e; ( 5) The c ont r i but i on of e ac h pa r t y t o t he ac qui s i t i on, pr es er vat i on, a ppr ec i at i on, de p rec i at i on or di s s i pat i on of

t he m ar i t al or s epa r at e pr oper t y, i ncl udi ng t he cont r i but i on of a par t y t o t he m ar r i age
as hom em aker , w age ea r ner or par ent , w i t h t he cont r i bu t i on of a par t y as h om em aker or w age ea r ner t o be gi ven t he s am e w ei gh t i f ea ch part y has ful fi l l ed i t s r ol e; ( 6) The va l ue of

t he s epa r at e pr oper t y of e ac h pa r t y; ( 7) Th e e s t at e of

ea ch part y at t he t i m e of t he m ar r i age; ( 8 ) T h e e c o n o mi c c i r c u ms t a n c e s o f e a c h p a r t y a t t h e t i me t h e d i v i s i o n o f p r o p e r t y i s t o b e c o me eff ect i ve; ( 9) The t ax cons eque nce s t o e ac h pa r t y, cos t s a s s oci at ed w i t h t he r ea s onabl y f or es ee abl e s al e of t he

a sse t, a n d o th e r re a so n a b ly fo re se e a b le e x p e n se s a sso c ia te d w ith th e a sse t; ( 10) The a m ount of

s oci al s ec ur i t y be nef

i t s a vai l abl e t o e ac h s pous e; a nd (1 1 ) S u ch o t h er fa cto rs as are n ec essa ry t o co n si d er th e e q u i t i es b etw ee n t h e p arti es.

T .C .A . § 3 6 -4-1 2 1 (c) (20 0 5 ).

H us band r ec ei ved an or i gi nal Fa r ns w or t h pa i nt i ng va l ued at a ppr oxi m at el y $10, 000. 7

Thi s i s t he net va l ue of t he vehi cl e, c ons i der i ng t he r em ai ni ng de bt on t he aut om obi l e l oan. 8

-10- wh e n d ivi din gthe mari ta l pr op e rt y , an d its distri butio n will be g ive n “g re at we ig ht” on a pp e a l. See

6 Sul livan v. Sul

livan , 1 0 7 S

. W

. 3 d 5 0 7 , 5 1 2 (T en n

. C t

. Ap p

. 2 0 0 2 ) ( ci t i n g Goodm an v. Goodm an , 8 S.W .3d 289, 298 (Tenn. Ct. App. 1999)) . An appe llate cour t is “disinclined to disturb the trial court’s de cision unless the distribution l acks pr oper evidentiary support or results from some err or of law or misapplication of statutory require ments and proc edure s.” Ma rti n v . M artin , 155 S.W .3d 1 2 6 , 1 2 9 (T en n

. C t

. Ap p

. 2 0 0 4 ) ( qu o t i n g He rre ra v . He rre ra , 944 S.W .2d 379, 389 (Tenn. Ct. App. 1996)). The divi sion of t he marital estate is not required to be e qual in order to be equitable. See Kina rd v . Kinar d , 986 S.W.2d 220, 230 (Tenn. Ct. App. 1998) ( citations omitt ed).

Under the terms of the trial court’s order , Wife was awa rded all of the e quity in the marital residenc e up to $120,000. She re ceive d almost all of the househol d g o o d s and furnishings in t he marital re sidence , valued at a pproximately $100,000. Wife rec eived half of the net ca sh surrende r 7 value of the insuranc e policies on H u s b an d ’s l ife (a pproximately $20,850), ha lf of the va lue of Husband’s 401(k) retire ment acc ount w ith the Baker Done lson law firm (a pproximately $49,000) and $51,500 for

her ne t interest in the Vinin g S p arks IBG stock. She also rec eived a ll bank and investment acc ounts in her name ( approximate ly $2,075) and a ll i n s u ra n ce policies on her life (appr oximately $10,000). She also re ceive d her vehicle, valued at $500. In all, the va lue of W ife’s 8T he $2 0, 85 0 aw ar d of hal f o f t he net cas h s urr ender val ues o f t he i nsur ance p ol i ci es o n H usband’s l i f e w as 9
al i m ony i n s ol i do

.

A g ain , t h i s rep rese n t s t h e n et v alu e, co n si d erin g an y o u t st an d i n g au t o m o b i l e lo an s. 10

T he di s t r i bu t i on of t he m ar i t al debt i ncl ud ed ot her l oans not l i s t ed s epar at el y because t hey w er e c on s i dere d 11
i n a r r i vi ng a t a ne t va l ue of ot her a s s et s

. They i ncl ude a $307, 000 l oan f r om Fi r s t Tenn ess ee B an k secur ed by t he V i n i n g S parks I B G s t ock, a $710
, 00 0 l oan t o R andel l t hat H usband gu ar ant eed, and vari ou s ot her s m al l er l oan s, i n clu d i n g au t o m o b i l e lo an s.

A s w i t h t he t ax cons eque nce s of s el l i ng t he V i ni ng Spa r ks s t ock, t he t r i al cour t s houl d cons i der on r em and 12

w het her R andel l Co r po r at i on ’ s debt t o H usband w i l l i n f act no t be pai d ( f orgi ven f r om t he s t andp oi nt of R andel l , w r i t t en of f f r om H us band’ s s t andpoi nt ) , a nd a ny r es ul t i ng t ax cons eque nce s or ot her r am i fi ca t i ons f or Rande l l a nd H us band.

-11- share of t he marital property totaled appr oximately $343,925. As to liabilit ies, Wife was orde red 9 to p a y a ll o uts ta nd ing de bt i n he r ow n na me , whi c h tota le d ap pr ox imate ly $21 ,1 30 a ndthepa rt ie s’ approximate ly $15,000 debt to W ife’s mother, Marga ret Vick. Af

ter c onsidering the debt a llocated to Wife, he r net shar e of the marital estate totaled appr oximately $307,795.

Th e tri a l c o u rta w ar d e d H u s b a n d t h e h o u s e h o l d g o o d s a n d f u r n i s h i n g s i n h i s ap art m e n t, valued at approximately $40,000, plus a painting valued at approximate ly $10,000. He also re ceive d all rights, titl e, and interest in the Rande ll Corporation deeme d to have z ero va lue. Husband r ece ived all of the Vining Sparks IBG stock, subject to W ife’s $51,500 lien, repr esenting half of the net value of the stock. Husband rec eived a ll of his stock in Baker Donelson, valued at approximately $22,000, his entire 401(k) retire ment acc ount with Baker Done lson, subject to Wife’s $49,000 lien (re prese nting half of the value of the 401( k) ac count), a nd all of the insura nce policie s on his life, subject to Wife ’s $20,850 lien, repr esenting half of the net cash surre nder va lue. Husband r ece ived theve hic le s d ri ve n b y him an d by his son , va lue d at a tota l of ap pr ox imate ly $ 2, 00 0, a nda ll o f h is 10 guns and sporting equipment, value d at approximate ly $11,165. H usband also re ceive d all bank and investment acc ounts in his name, valued at a p p ro ximately $2,272. In all, Husband’ s share of the

mari ta l pr op e rty tot a le d app ro xim a te ly $2 08 ,7 87

. Hu sb a ndwa s o rd e re d to pay a ll o uts ta nd ing de bts in his name, including cre dit card de bt, which totaled appr oximately $62,589, as we ll as two business-re lated loans totaling $286,000. Husband was also order ed to pay the specia l master’s f ee
o f $7,185. Husband’s a ffidavit indicate s that he wa s responsible for 2003 income taxe s in the amount of $40,000. This amounted to a total de bt of approximate ly $395,774. Using the trial 11 court’s va luation of R andell Corporation, Husband’s net a llocation of marital pr operty would be a negative $186,987.

Howeve r, as noted a

bove, we have de termined that, in light o f t he fa ct that Randell’s $419,000 indebtedness to Husba nd must be considere d, in essence , forgiven, Randell Corporation would have a

positive valuation. In l ight of t he trial court’s divisi on of t he remainder of the marital pr op e rty, we fi ndthat the ne t va lue of Ra nd e ll Cor po ratio n sh ou ld be div ide d b e tw e e n th e pa rt ie s, half to Wifeand half

to Husband. Howe ver, the rec ord d o es n o t i n clude evidence on the tax conseque nces or

other ramifications, to both Husband and Rande ll, of dee m i n g Randell’s ind e bte dn e ss to Hu sb a nd un c oll e c tib le

. So w e mus t r e ma nd thi s is su e to the tria l c ou rt . W iththi s 12 modification, the trial court’s distribution of the marital property is affirmed a s modified.-12- Al im ony

We now addres s Wi fe ’s assertion that the trial court er red in not aw arding he r alimony in fut ur o . I n h e r c omp laint fo r div or c e , W if e so ug ht “ a lim on y, ” wi tho ut s pe c if yin g a typ e or a mou nt. At trial, Wife asked f

or transitional alimony for twe lve yea rs. The tria l court a wa rded Wife transitional alimony for a total of six years, $6,000 a

month for three year s and $3,000 a month for the next thre e yea

rs. In the fir st appea l, Wife sought tra nsitional alimony for ten yea rs. The issue of alimony was not addre ssed in this Court’s opinion in the first appea l because issues af fec ting the property distributi on wer e re manded to the tria l court, with issues surroundi n g alimony to be

rec onsidered in the c ontext of the a ltered division of marital pr operty.

On re mand to the trial court, Wife sought alimony in f utu ro . The trial c ourt did not awar d Wife alimony in f

utu ro , but instea d awa

rded an additional year

of transitional alimony. Wife now asks this Court to award he r alimony in f utu ro in the amount of $6,000 per month.

Husband a

rgues that Wife is judicially estopped fr om seeking alimony in f utu ro , beca

use at tria l sh e a sk e d f

or tr a ns iti on a l a lim on y. “ Pur su a nt to the do c trine of jud ic ia l est op pe l, a p arty w ill not be permitted to take a position that is directly contrary to or inconsistent w i t h a posi tion pr e vio us ly take n by the pa rty whe re the pa

rty ha d or wa s cha

rg e a ble wi th fu ll kno wl e dg e of thefa c ts and whe re the conduct would pr ejudice another.” Guzman v. Alvares
, 205 S.W.3d 375, 382 (Tenn. 2006) (c iting Ma rc us v . M ar c us , 993 S.W.2d 596, 602 (Tenn. 1999) ).

Husband also argue s that Wife has waived the issue of alimony in f utu ro beca

use she failed to raise this issue at trial or in the first appea l. The a ppellate c ourt may treat issues that are not r aised on appea l as being wa ived. See Te nn . R. Ap p. P. 1 3( b) ; Bing v . Ba pti st M e m’ l Ho sp .- Union Ci

ty , 937 S.W.2d 922, 924 (Tenn. Ct. App. 1996). I ssues that are not r aised in the trial court may a lso be deeme d waived. See Te nn . R. Ap p. P. 3 6( a ); Ale xa nde r v . Ar

me ntro ut , 24 S.W.3d 267, 272 (Tenn. 2000).
Husband points to no pla ce in the rec ord in w hich he argue d to the trial court that Wife was judicially estopped fr om seeking alimony in fut ur o or that Wifehad waived the issue of a limony in f utu ro , and we have f

ound none. Unde r these c ircumstance s, we must find t hat Husband ha s waived the issues of judicial estoppel and waiver as to W ife’s reque st f or al i m ony in f

utu ro

. See Tenn. R. App. P. 36(a)

. Having dete rmined that the issue is prope rly before thi s Court, we now a ddress W ife’s argume nt that the t rial court err ed in declining to award he r alimony in f utu ro . “Tria l courts have broad discr etion to determine whether spousal support is neede d and, if so, the appropriate type of alimony, amount, and duration.” Ne amt u v . N e amt u , No. M 2008-00160-COA- R3-CV, 2009 WL 152540, at *5 (Te nn. Ct. App. Jan. 21, 2009) (c iting Wy nns v . W y nns , No. M2 00 7- 00 74 0- CO A- R3- CV , 2 00 8 W L 4 41 57 86 , at *2 ( Te nn . Ct . A pp . Se pt. 26 , 2 00 8) ). Ap pe llate
c ou rt s ar e , the re fo re , re luc ta nt t o s e c on d g ue ss a tria l c ou rt ’s de c isi on re ga rd ing a lim on y “ un le ss i t is n ot s up po rt e d b y th e e vid e nc e or is c on tr ary to the pu bli c po lic y e mbo die d intheapp lic able statutes.” Bro wn v . Br

own , 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994) ( citations omitt ed).T ho s e f act ors i ncl ud e: 13

( 1) The r el at i ve ea r ni ng c apa ci t y, obl i gat i ons , ne eds , a nd fi nanc i al r es our ce s of ea ch par t y, i ncl udi ng i n co m e fro m p en si o n , p ro fit sh arin g o r reti rem en t p l an s an d all o t h er so u rce s; (2 ) T h e re la tiv e e d u c a tio n a n d tra in in g o f e a c h p a rty , t h e a b ili ty a n d o p p o r tu n it y o fe a c h p a rty to

s ec ur e s uch educ at i on a nd tr ai n i n g , a nd t he nec es s i t y of a pa r t y t o s ec ur e fur t her e duca t i on a nd tra in in g to im p ro v e su c h p a rty ’s e a rn in g s c a p a c ity to a re a so n a b le lev e l; ( 3) Th e durat i on of t he m ar r i age; ( 4) The a ge and m ent al c ondi t i on of e ac h pa r t y; (5 ) T h e p h y sic a l co n d iti o n o f ea c h p a rty , in c lu d in g , b u t n o t lim ited to , p h y sic a l d isa b ili ty o r in c a p a c ity du e t o a chr on i c debi l i t at i ng di s eas e; ( 6) Th e e xt en t t o w hi ch i t w ou l d be un des i r abl e f or a par t y t o s eek em pl oy m ent out s i de t he ho m e, becaus e s uch p ar t y w i l l be cus t od i an of a m i no r chi l d of t he m ar r i age; ( 7) Th e s epar at e a s s et s of eac h part y, bot h re al and pers on al , t angi bl e a nd i nt angi bl e; ( 8) The pr ovi s i ons m ade w i t h r ega r d t o t he m ar i t al pr oper t y, a s de fi ned i n § 36- 4- 121; ( 9) Th e s t andard of l i vi ng of t he part i es es t abl i s hed d uri ng t he m ar r i age; ( 10) The e xt ent t o w hi ch ea ch par t y h as m ade s uch t angi bl e and i nt angi bl e cont r i but i ons t o t he

m ar r i age as m onet ar y and hom em ake r cont r i but i ons , and t angi bl e and i nt angi bl e cont r i but i ons by a par t y t o t he educ at i on, t r ai ni ng or i ncr ea s ed ea r ni ng pow er of t he ot her pa r t y; (1 1 ) T h e re la tiv e fa u lt o f th e p a rtie s, in c a se s w h e re th e c o u rt, in it s d isc re tio n , d e e m s it a p p ro p ria te t o do s o; a nd ( 12) Suc h ot her f ac t or s , i ncl udi ng t he t ax cons eque nce s t o e ac h pa r t y, a s a r e nec es s ar y t o c ons i der t he eq u i t i es b etw ee n t h e p arti es.

T

. C

. A

. § 3 6 -5-1 2 1 (i ) ( 2 0 0 5 ).

-13- Tenne ssee Code A nnota

te d § 3 6-5-121( i) outlines the fac tors to be consider ed in determining whether to awar d alimony and, if so, the type and amount. The two most important fac tors are the 13 need of the disadvanta ged spouse and the obligor spous e’ s ability to pay. Av ar itt v . Av ar itt , No. M2007-01804-COA- R3- CV , 2 0 0 8 W L4 072087, at *2 (Te nn. Ct. App. Aug. 28, 2008) (c iting Oakes v. Oake s , 2 35 S.W .3 d 1 52 , 1 60 (T e nn . Ct . A pp .2 00 7) ). Al tho ug h f ault is an a pp ro priate fa c tor

to consider, a limony is not meant to be punitive. See T. C.A . § 36 -5 -1 21 (i )( 11 ) ( 20 05 ); Ta it v. Ta it , 207 S.W.3d 270, 278 (Tenn. Ct. App. 2006) ( citations omitt ed).

Her e, Husba nd, age sixty-thre e at the time of trial, is a share holder with the Bake r Done lson law firm, with earnings from the f irm for the ye ars 2001- 2003 of appr oximately $296,000, $287,000, and $303,000, respectively. At trial, Husband’s February 2004 a ffidavit stated that his most rec ent draw from B aker Donelson at that time was approximately $13,000 per month, with a potential year

e nddis tribu tio n o f u p to $54, 00 0. Th e a ve ra ge mon thl y dist ri bu tio n fr om the Vi nin g Sp ark s I BG sto c k aw ard e d to Hus band va ri e d fr om ze ro to $4, 75 0. Th e tria l c ou rt fo un d th a t H us ba ndwa s in go od he a lth a nd that his to ta l ov e ra ll i nc ome“ a ve ra ge s b e tw e e n $ 35 0, 00 0- $4 00 ,0 00 in y e arl y g ro ss income fr om his law firm, commodities trading comp any and the Vining Sparks IBG Securities Company.”

In contra st, Wife last worke d full time over twenty ye ars a go as a se curities and c ommoditi es trade r ea rning over se venty-five perc ent of her commissi ons from trades t hat s he made on behalf of Husband or Ra ndell. Her securities and commodit ies trading license s have long since lapsed. W ife quit her job as a securities and commodit ies broker to stay home and c are for the pa rties’ lea rning-14-

dis able d s on . T his pe rm itt e d H us ba ndto f oc us on fu rthe ri ng his c are e r. Th is f a mil y c ho ic e is

e xp lic itl y s up po rt e d b y th e le gis latur e . T he a lim on y s tatut e pr ov ide s a s f oll ow s: Spo us e s h a ve tr a dit ion a lly str e ng the ne d th ef am i l y u n i t thr ou ghprivate arr a ng e me nts wher eby one ( 1) spouse focus es on nurturing the per sonal side of the ma rriage , including t h e ca re and nurturing of the childre n, while the other spouse foc uses primarily on bui l d ing the economic stre ngth of the family unit . This arrangement
o f te n r e s u lt s ine c o n o mi c d e trim e n t t o th e s p o u s e w h o s u b o r d in a te d s u c h s p o u s e ’s

ow n p e rs on a l c are e r f

or thebe ne fi t of

themarriage. It is the pu bli c po lic y o f this state to enc ourage and support marria ge, and to encour age family arr angeme nts that provide for

the re aring of healthy and productive c hildren who will bec ome hea lthy and produc tive citizens of our state.
T.C.A. § 36-5-121( c)( 1) (2005)

.
Her e, the tria l court orde red an awa rd of transitional a limony. Codified in 2003, transitional alimony is a sum certa in paid “for a determinate period of t ime.” T.C.A. § 36-5-121( g)(1) (2005). It is “ a wa rd e d w he n th e c ou rt

fi nd s th a t r e ha

bil itatio n is no t nec e ssa

ry , b ut the e c on omi c a lly disadvantage d spouse nee ds assistance to a djust to the economic conseque nces of a divorce .” Id. ;
se e als o T.C.A. § 36-5-121( d)(4) (2005). An awa rd of transitional alimony is g en er al l y nonmodifiable. See T.C.A. § 36-5-121( g)(2) (2005).

In contra st, alimony in f utu ro is paid on a l o n g t er m basis, gener ally “until death or

re ma rria ge of therecipi ent .” T. C.A . § 36 -5 -1 21 (f )( 1) (2 00 5) . I t is a lso pa id t o a n e c on omi c a lly disadvantage d spouse when reha bilitation “is not fea sible,” defined i n the s tatute as “meaning that thedis a dv a nta ge d s po us e is u na bleto ac hie ve , with re a so na ble e ff ort, an e arn ing c apa c ity that w ill permit the spous e’s standard of living afte r t he divorce t o be re asonably c ompara ble to the standar d of living enjoyed during the ma rriage , or to the post-divorcestandard of living expected to be available to the other spouse.” Id. An awa rd of a limony in f

utu ro is subject to modification “upon a showing of substantial and material changein circumstanc es.” T.C.A. § 36- 5-121(f )(2) (A) ( 2005).

Inthediv or c e de c re e , th e tria l c ou rt fo un d that Wif e , fif ty- six ye ars old a t the tim e of tria l, was in good hea lth, was a high school gra duate “ with previous training in marke ting and/or securities trading ac tiviti es.” It noted that she ha d been a homemaker

since 1985, whe n she ce ased w orking outside the home to ca

re f or the pa rties’ son. The trial court m ad e n o fi n dings regar ding Wife’ s potential for r ehabilitation or her earning capa city.

Inhe r t e sti mon y, W if

e ind ic a ted th at sh e be lie ve d th a t sh e c ou ld p a ss the re qu ir e d te sts to
rene w her licenses in sec urities and commodities trading, but was hampere d beca use an employer sponsor was ne cessa

ry for her to take the tests, and she had had no succe ss in finding one. From the testimony itappea

rs that Wife is able to work in some c apac ity, though it i s unclea r whe ther the

wo rk wo uldbe in s e c uriti e s a nd /or c omm od iti e s tra din g. It is c le ar that w hate ve r w or k W if e is a ble to secure , she will never

approa ch a le vel of e arnings re motely compara ble to Husband.-15-

The a limony st atutes define reha bilitation as attaining an earning c apac ity that permits the economica lly disadvantaged spo u s e a standa rd of living that is “rea sonably compar able to the standard of living enjoyed during the m arriage.” T.C.A. § 36-5-121( f)( 1) (2005) . It is clear that the stand ard is no t a ttaina

ble by W if

e , a nd ind e e d is pr ob ably no t a ttaina ble by Hus ban d. W hil e Hu sb a ndis a

re sp e c te d la wy e r andbu sin e ssm a n w ithimp re ssi ve earn in gs , th e pa rt ie s’ lif e sty le during the marriage simply d i d n o t re fl ect the tr uth of their fina ncial cir cumstance s. The proof indicates that the a ssets owned by Husband were supported by cash flow, but wer e leverage d by a

c ri pp lin g a mou nt o f d e bt, c re a tin g a fa c a de of a ff lue nc e . I t app e a

rs fr om the re c or d th a t ne ith e r p arty will be able to maintain a standard of living af ter the divorce that is “ rea sonably compar able to the standard of

living enjoyed during the marriage.”

The a lternate statutor

y d e f in it io no f r e h a b il it ati o nme an s th a

t t he ec onomically disadvantage d sp ou se a ttains a n ea

rn ing c apa c ity that permit s a sta nd ard of liv ing that is “ re a so na bly c omp ara

ble . . . to the post-divorce standard of living expec ted t o be available to the ot her spouse.” Id. From the re cord, it is unclea

r what Husband’s post-divorc e standa rd of living will be. Much of the proof on Husband’s a lleged dissipation focused on Husband’s expenditure s that involved his extra- martial

re lat i o n s h i p , s u c ha s tr a v e l , h o u s i n g a n d c l o t h i n g e x p e n s e s , r e s t au r a n t s a n d e n t e rt a i n m e n t

. W h ile such expe nditures would appe ar e xtrava gant i n the face of the enormous debt load that Husband wa s
car rying during this time, the trial court f ound that this spending pattern wa s simply a continuation of t he spending in which Husband had e ngaged thr oughout the marria ge, i.e. , was “typical” to the parties’ marria ge. The rec ord bea rs out this finding.

In the c ontext of considering alimony, we then c onsider Husba nd’s “post-divorc e” sta ndard of living and whethe r Wife wil l be able to attain a standard of living that is rea sonably compar able, given the allocation of the marital estate to her and her e xpecte d level of e arnings. In r evie wing Husband’s e xpenditures during the parties’ separ ation, the trial court commented that “H usband could not have maintained his profe ssional lifestyle at the same level without these e xpenditures,” even going so fa

r as to find that the expenditures bene fitted Wife . It is unclear whether the trial court was indicating that Husband should be expe cted to continue to maintain suc h an expe nsive lifestyle, even in the f

aceof mountainous debt which, at the end of the day, must be paid.

This issue also impacts our evaluation of Husband’s ability to pay alimony in f utu ro to Wife, one of t h e t wo most im portant fa ctors. Counsel for H usband rightly emphasize s the amount of indebtedness that was allocate d to Husband in the trial court’s division of marital property. The debt is d aun tin g inde e d, bu t th e tria l c ou rt c ou ld o nly ha ve a llo c a te d it to H us ba nd ; hec ho se to i nc ur it and is the only party with any hopeof re paying it. On t o p o f p ay i ng off the de bt, is Husband exp ec t ed t o reta in the fac ade of aff luence in the name of

maintaining a “pr ofessional” lifestyle? Meanw hile Wife , having bee n out of the workf orce for ove r twenty ye ars to raise the parties’ son, finds herse lf ill-equipped for any wor k other than an entry-le vel job.

The trial c ourt specif

ically found that Wife needs support and that Husband is a ble to pay, and the r ecor d supports those findings. We note that Wife rec eived the lion’s share of the marital pr op e rty. Ho we ve r, a ft e r p ur c ha sin g n e c e ssi tie s su c h a s a ne w h ome , h e r r e ma ini ng mari ta l pr op e rty wi l l b e i n s u fficie nt to sustain her once the transitional alimony runs out, and, like Husba nd, WifeI n hi s br i ef, H u sban d argu es persuasi v el y t h at t ransi t i o n al al i m o n y un d er T en n ess ee C o d e A n n o t at ed §§ 36- 5- 14
12 1( d) ( 4) a nd 36

- 5- 12 1( g) ( 1) was i nt e nd e d t o b e of a dur a t i on of

t w o ye a r s or l e s s , ci t i ng t he l e gi s l a t i ve hi s t or y on H

. B. 1 4 8 0 a n d S .B . 6 2 2 in 2 0 0 3 . A s n o te d b y H u sb a n d , t h e fa c t t h a t t ra n sitio n a l alim o n y is g e n e ra lly n o n -m o d ifia b le

s uppor t s t he pr em i s e t hat i t w as i nt ende d t o be s hor t

- t er m

. H ow eve r , i n l i ght of our a w ar d of

a l i m ony i n f

u t u ro a t t he

e n d o f th e trial c o u rt’s a w a rd o f tra n sitio n a l alim o n y in th is c a se , w e n e e d n o t ad d re ss H u sb a n d ’s a rg u m e n t.
-16- mus t ma ke pr ov isi on s f

or he r e ve ntu a l r e tir e me nt. Th e re fo re , fr om the re c or d, we fi ndthat W if e wi ll have a continued nee d of support beyond the transitional alimony awar ded by the tria l court.

Ba se d o n th e app lic a tio n of the fa c tor s e nu me rate d in S e c tio n 3 6- 5- 12 1( i) to the fa c ts o f this

case , we must conclude that Wife is entitled to an awa rd of a limony in f

utu ro upon termination of the transitional alimony. There fore , we modify the tria l c ourt’s alimony awar d to include an a war d of alimony in futuro in the amount of $1,500 per month upon termination of t he transitional alimony

awa rd. 14

Attor ney’s Fee s

W e ne xt a dd re ss w he the r the tria l c ou rt e rr e d inre fu sin g to a wa

rd W if e he r atto rn e y’ s f

e e s. A trial court’s decision rega rding an a war d of attorne y’s fe es is revie wed unde r an a buse of discretion standa

rd, and w ill only be rever sed i f the trial c ourt abused its discre tion. Owens v. Ow e ns , 241 S.W.3d 478, 496 (Tenn. Ct. App. 2007) (citing Aaron v. Aaron , 909 S.W.2d 408, 411 (T e nn . 1 99 5) ; Eldridge v. Eldridge , 137 S.W.3d 1, 25 (Tenn. Ct. App. 2002)). A trial court abuses its discretion when “ its decision is not supported by the evidenc e, whe n it applies an incorr ect lega l standard, [ or] when it r eac hes a de cision which is against logic or r easoning that c auses an injusti ce to the party c omplaining.” Id. (citing Bis c an v . Br own , 160 S.W.3d 462, 468 (Tenn. 2005) ). An award of attorney’ s fee s usually takes the form of an award of alimony in solido

. Yo unt
v . Y ount , 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002) (citing Storey v. Storey , 835 S.W.2d 593 (Tenn. Ct. App. 1992)). “A ccor dingly, a trial court considering a reque st f or attorne y’s fe es must consider the fa ctors contained in [ Tenne ssee Code Annotated] § 36-5-121( i), with the most important factors be ing th e need of

thee c on omi c a lly dis a dv a nta ge d s po us e a ndtheabil ity of theob lig or

sp ou se to pay.” Ow e ns , 241 S.W.3d at 495–96 (citing Eldridge , 1 37 S.W .3 d at 24 –2 5; Miller v. Miller , 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001)). “It is considered most appropriate whe re the final dec ree of divorce does not pr ovide the obligee spouse with a sourceof funds, such a s from prope rty division or alimony in solido, with which to pay his or her attorney.” Yo unt , 91 S.W

. 3 d at 783 (c iting Houghl and v . Ho ughl

and , 844 S.W.2d 619 (Tenn. Ct. App.1992))

.
W if e arg ue s th a t H us ba nd sh ou ld b e or de re d to pay h e r atto rn e y’ s f e e s b e c aus e he pa id s ome of his ow n atto rn e y’ s f

e e s f ro m th e a sse ts o f R a nd e ll Co rp or a tio n, a mari ta l a sse t. F or

thi s pr op os iti on , W if

e c ite s Aaron v. Aaron , 909 S.W.2d 408 (Tenn. 1995) and Hanover v. Hanover , 77 5 S

. W

. 2 d 6 1 2 ( T e n n

. C t

. A p p

. 1 9 8 9 )

. I n d e e d , t h i s i s a f a c t o r f o r t h e tr i a l c o u rt t o c o n s ide r i n determining whether to aw ard a party attorney’s fe es. See T.C.A. § 36-5-121( i)(12) ( 2005).

Howeve r, we also consider the shareof m arital property awarde d to eac h party. In this ca se, Wife rec eived a

gener ous share of t he marital property. He r net a llocation prior to any division of the value of

Randell Corporation totals over $300,000. Moreove r, upon termination of W ife’s-17-

transitional alimony, she will rece ive alimony in futuro in the amount of $1,500 per month. Based on a consi d er ati on of the statutory fa ctors, we find no err or in the trial court’s ref usal to order Hu sb a ndto p a y W if

e ’s a tto rn e y’ s f

e e s.

Po st -J udgm e nt

Int e r e st

Fin a lly , w e a dd re ss wh e the r the tria l c ou rt e rr e d in f a ili ng to a wa

rdpo st- jud gme nt i nte re st
on the additi onal $13,000 awa rded to Wife as a result of the modified va luation of the Vining Sparks IBG s tock. The statute provides that “[i]ntere st shall be computed on eve ry judgment from the day on which the jury or

the cour t, sitt ing w ithout a jury, returne d the verdic t without regard to a motion for a new tria l.” T.C.A. § 47-14-122 ( 2001). The a war d of post-judgment interest is mandatory and the trial court may not r efuse to ma ke such an aw ard. Vooys v. Turner , 49 S.W.3d 318, 322 (Tenn. Ct. App. 2001) (citations omitted).

Wife argue s that interest begins to ac crue from the date that t he party is entitled to the money,

se e Wil lia ms v . W

ill iam s , No. E1999-02750-COA-R3-CV, 2000 WL 816821 (T enn. Ct. App. June 23, 2000), and that Wife was entitl ed to the additi onal $13,000 at t he ti me of the entry of t he fina l divorce dec re e o n M ar ch 17, 2004. Husband, howe ver, c ites the ca se of Bun ch v. Bunch , No. 03A01-9805-G S-00156, 1999 WL 172674 (Te nn. Ct. App. Mar. 24, 1 9 9 9 ), an d argue s that the interest did not begin to acc rue until t h e entry of the judgment on remand, w hich occ urre d on November

6, 2007.

In Bun ch , this Court addressed a situation sim ilar to that prese nted in this case. As in the prese nt case , Bun ch was on a ppeal f or the sec ond time. Id. at *1. In the f irs t ap p ea l , this Court de te rm ine d th a t th e tria l c ou rt ha d u nd e rv a lue d on e of the mari ta l a sse ts, a ndre ma nd e d th e c a se to the trial court for a r edete rmination of “the a pportionment of m arital assets.” Id. at *4. On re mand, the trial court determined that the wife was e ntitled to an additional awar d of $12,500. Id. at *1. In the sec ond appea l, the wife a rgued that she was entitl ed to an award of post-judgment interest fr om the date of the original divorce decr ee. Id. at *4. In support of he r position, she relied on Wade v. W ade
, 89 7 S .W.2d70 2 ( Te nn . Ct . A pp . 1 99 4) ; Inman v. Alexander , 8 71 S.W .2 d 1 53 (T e nn . Ct

. App. 1993); and Inman v. Inman , 8 40 S.W .2 d 9 27 (T e nn

. Ct. Ap p. 19 92 ). Intho se c a se s, po stjudgment interest was a war ded fr om the date of the original judgment, not the date of the judgment

on rema nd. See Wade , 8 97 S.W .2 d at 72 0; Inman v. Alexander , 8 71 S.W .2 d at 15 3– 54 ; Inman v. Inman , 840 S.W.2d at 931.

The Bun ch Cou rt , h ow e ve r, dis tin gu ish e d th e c a se s o n w hic h th e wi fe re lie d. It no te d th a t, in tho se c a se s, “ theapp e llate c ou rt modified the lower cour t ’s j u d gment, i.e. , c ha ng e d s pe c if ic monetary a war ds therein.” Bun ch
, 1999 WL 172674, at *4. In Bun ch
, howeve r, after de termining that one of the marital assets wa s underva lued, the appe llate court had re manded the c ase to a llow the trial court to de termine the proper distribution. Id. There fore , the Bun ch Court held t hat “the date on which the trial court enter ed judgment a fter rea pportioning the parties’ marital asse ts upon
rema nd . . . is the date upon whic h it ‘returne d the ver di ct ’ fo r p u rp o s es of [ Tenne ssee Code Annotated] § 47-14-122.” Id. at *5. Acc ordingly, the appe llate court held that the wife was e ntitled to interest from the date of the judgment on re mand, not the date of the original judgment. Id.-18-

In the pre sent ca se, as in Bun ch , this Cou rt didno t mo dif

y th e jud gme nt o f the tria l c ou rt

. Rather, it rema nded the case to the t rial court for a rec onsideration of the di stribution of the marital estate a fter de termining that one of t h e marital assets was unde rvalue d. See Watson , 2005 WL 1882413, at *10. Becaus e t h i s C o u rt re manded the c ase to a llow the trial court to make its own decision re garding the distribution, the date of the judgment on rema nd, not the date of the original divorce decr ee, is the date on which the trial court “returne d the verdict” for the purposes of Section 47-14-122. See Bunch , 1 9 99 WL 172674, at *5. There fore , post-judgment interest on the additional $13,000 awa

rded to W ife a s her sha

re of the marital estate began to a ccr ue fr om November

6, 2007, wh ic h w a s th e date of

thejud gme nt o n re ma nd . On r e ma nd , th e tria l c ou rt is d ir e c te d to a wa

rdpo stjudgment interest on the additional $13,000 fr om November 6, 2007, the dat e o f the judgment on the pre vious remand.

C ONCL US I ON

For the rea sons stated above , we a ffirm the tria l court’s finding that Hu s b an d did not dissipate marit al as s et s , aff irm the trial court’s awa

rd of an additional $13,000 to Wife f or her int e re st i n th e Vi nin g Sp ark s I BG stock, reve rse the t ri a l c ou rt ’s fi nd ing that th e va lueof Ra nd e ll Corporation is zer o and re m an d the cause for allocation betwe en the pa rties of the ne t value of Randell, modify the trial court’s alimony aw ar d to include, upon expiration of the transitional alimony, an awa

rd of alimony in futuro in the amount of $1,500 per month, affirm the trial c ourt’s ref usal to awa

rd Wife her attorney’s fees, and order the award of post-judgment interest on Wife ’s

awa rd on the modified va luation of the Vining Spar ks IBG stock from the date of the judgment on

rema nd on November

6, 2007.

The de cision of the trial c ourt is a ffirme d in pa rt, reve rsed in part, modified, and r emande d

as s et fo rt h above. The costs of this appe al ar e taxe d equally to Carol Ann Vic k Watson, a nd her surety, and Frank Lee Watson, Jr., f or which e xecution may issue if ne cessa ry.

___________________________________ HOLLY M. K IRBY, JUDGE