IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 8, 2010 Session

TONYA S. NICHOLSON v. GREGORY M. NICHOLSON

Direct Appeal from the Chancery Court for Rutherford County

No. 09-0009DR Royce Taylor, Chancellor

No. M2010-00042-COA-R3-CV - Filed October 15, 2010

In this divorce case, Wife/Appellant appeals the trial court’s division of marital property and

denial of her request for alimony. Finding that the trial court correctly valued the dental

practice and properly awarded same to Husband/Appellant, we affirm that portion of the trial

court’s order. However, because the trial court did notspecifically determine whether certain

debt was separate or marital debt, and, consequently, did not allocate that debt, we vacate the

trial court’s division of marital property, and remand for a determination of the nature of the

marital debt, and division of same. Because the trial court did not meet the requirements of

Tenn. Code Ann. § 36-5-121(i), we vacate the trial court’s denial of alimony, and remand for

further proceedings concerning Wife/Appellant’s need for alimony, and Husband/Appellee’s

ability to pay same. Affirmed in part; vacated in part, and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court affirmed in

part, vacated in part, and remanded

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and DAVID R. FARMER, J., joined.

Nick Shelton, Franklin, Tennessee, for the appellant, Tonya S. Nicholson.

Jon S. Jablonski, Nashville, Tennessee, for the appellee, Gregory M. Nicholson.

OPINION

I. Background and Procedural History

At issue in this case is the trial court’s division of marital property and denial of

alimony following a divorce. Appellant Tonya S. Nicholson (“Wife”) and Appellee Dr.

Gregory M. Nicholson (“Husband”) were married on March 15, 1996. Three children were
born during the thirteen year marriage. Husband, age 44, is a sole-practitioner dentist in

Murfreesboro, and Wife, age 37, was a homemaker and employee of Husband’s dental

practice during the course of their marriage. On January 6, 2009, Husband filed a Complaint

for Absolute Divorce in the Chancery Court for Rutherford County. Husband alleged

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irreconcilable differences and inappropriate marital conduct as grounds for the divorce.

Specifically, Husband alleged that Wife was guilty of adultery, abused alcohol, smoked

marijuana, and left her marijuana where it was easily discoverable by the parties’ children.

Husband requested a pendente lite hearing for the purpose of establishing which party

would maintain the primary residence for the children, arranging a temporary visitation

schedule, and resolving issues such as child support and other financial matters. This

pendente lite hearing was held before a Special Master on February 11, 2009.

At the hearing, Wife admitted to having extra-marital relationships with several men.

She admitted that one of her paramours gave her over $60,000 the previous year, a credit card

to use, and a Mercedes-Benz to drive. She further testified that she would sometimes stay

out until four o’ clock in the morning and come home completely intoxicated. She admitted

being arrested for driving under the influence. Moreover, Wife admitted to smoking

marijuana at her home and leaving marijuana butts on the patio where the parties’ children

could find them. Wife testified that she had been employed during the course of the marriage

at Husband’s dental practice, but asserted that she presently lacked the ability to get another

job.

The Special Master’s Report, filed February 25, 2009, set forth the Master’s findings

of fact and conclusions of law. In relevant part, the Master’s Report: named Husband the

temporary primary residential parent; adopted Husband’s parenting plan; ordered Wife to

move out of the marital residence within thirty days; ordered Husband to pay Wife’s deposit

and first month’s rent; and ordered Husband to pay Wife $1,500 per month for three months

as temporary support. Additionally, the Master found that Wife needed to find a job within

90 days and that the matter would be reevaluated after 90 days with the goal of reducing or

eliminating the temporary support.

Wife filed a timely Objection to the Master’s Report. In relevant part, Wife stated that

she was “without the financial means to secure an appropriate living environment in the brief

time mandated by the Special Master,” and that, with the “current . . . economic crisis,”

coupled with her “limited employment history,” she should be allowed to continue to reside

in the marital residence. Additionally, Wife argued that the Master erred in both the duration

Husband had filed for divorce approximately one year earlier alleging grounds of irreconcilable 1

differences, but this filing was voluntarily withdrawn.

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and amount of the pendente lite alimony as she had need for assistance and Husband had the

ability to pay. In his Response, filed March 10, 2009, Husband stated that Wife had “the

education and experience to obtain employment and the financial means to live outside of

the marital residence.” By Order filed March 16, 2009, the Chancellor found Wife’s

behavior to be “so outrageous” that he ordered her to vacate the marital home immediately.

However, the Chancellor also ordered Husband to pay Wife $3,000 towards finding a

suitable place to live. The Chancellor otherwise affirmed the Special Master’s Report.

On August 31, 2009, Wife filed an Answer and Counter-Complaint, alleging grounds

of inappropriate marital conduct. In her counter-complaint, Wife asked the court for

possession of the marital residence, an equitable division of marital property, and alimony

in futuro, in solido, or rehabilitative.

During the two day bench trial, the court heard extensive testimony regarding Wife’s

infidelity and substance abuse. Much of the testimony mirrored that adduced at the pendente

lite hearing. Again, Wife admitted to extramarital relationships, drug use, alcohol abuse, late

night partying, and multiple arrests for driving under the influence. After learning of her

marital misconduct, Husband testified that he “finally realized that I didn’t know who this

person was anymore.”

The court also heard testimony regarding Wife’s past education and employment

history. Prior to the parties’ marriage in 1996, Wife worked as a dental assistant. Early in

the parties’ marriage, Wife worked for a few months at a mental institution and for a few

months as a chiropractic assistant. Husband testified that, throughout their marriage, he had

employed Wife at his dental practice and had paid her between $12,000-16,000 per year.

Wife’s duties at the dental practice were largely related to marketing and public relations,

such as handing out business cards and promoting Husband’s practice in the community.

During the parties’ marriage, Wife served on boards and committees for several community

and charitable organizations. Following the pendente lite hearing, Wife acquired her real

estate license and, at the time of the hearing, was employed as a commercial real estate agent.

At the time of the hearing, Wife had not yet earned any significant commissions. Wife

further testified that she hoped to attend Middle Tennessee State University to acquire a

bachelor’s degree. Wife testified that her mother, who was supporting her financially, had

temporarily moved from Virginia and had been living with Wife in an apartment next to the

marital residence.

The court heard testimony regarding Husband’s dental practice. In 2000, when

Husband started the practice, his earnings for the year were $15,000. However, by 2008

(according to the parties’ proposed tax return), Husband’s earnings had increased to

$144,000. Husband testified that in 2001 his parents loaned him approximately $100,000 to

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start his business and purchase dental equipment. Husband’s father, Mike Nicholson,

affirmed the existence of this loan and indicated that, while Husband had not made any

payments on the loan to date, that he had not forgiven the loan and expected Husband to pay

him back.

Each party had accumulated credit card debt. Husband had approximately $33,000

on a credit card in his name only and approximately $12,000 on a credit card in his business’

name. He testified that the charges on both cards were incurred during the marriage for

business and household purposes. Wife had approximately $28,000 in debt spread over six

credit cards, each held in her name only, which debt she testified had been incurred during

the marriage for household purposes.

The parties’ marital residence had a first mortgage of approximately $317,406 and a

second mortgage of $18,659. The parties bought the house for $385,000 in December, 2007.

Husband did not believe that the house would sell for more than the debt owed. He testified

that they had bought “at the end of . . . the bubble when it was high, and since then its not so

good anymore.” The parties had also purchased two condominiums, which they had

renovated and sold during the pendency of the divorce. The proceeds from the sale of the

condominiums were held in their attorneys’ escrow accounts.

By Final Decree of Divorce, dated November 23, 2009, the trial court awarded

Husband a divorce on the grounds of inappropriate marital conduct and dismissed Wife’s

counterclaim for divorce. The court named Husband the primary residential parent due to

Wife’s outrageous conduct and adopted Husband’s parenting plan. The court found that

Wife’s conduct was not “just one or two bad choices or lapses” but was “a continuing pattern

that ran from the middle of 2004 through 2008 . . . . She was not only convicted of Driving

under the Influence due to her abuse of alcohol, she was involved with marijuana, leaving

it in plain sight and accessible to the children, she stayed out late at night and some nights

not even coming home. . . . The Court finds that the [Wife] basically abandoned the family

unit.” The court dismissed Wife’s claim for alimony, stating that “rather than finding

employment, [she] lived as a party girl. And the Court uses that term charitably because it

believes it is much worse than just party girl.”

The trial court then divided the marital estate. The court awarded Husband the

marital residence after determining that there was no equity in it and Wife was not capable

of making the mortgage payments. The court evenly divided the parties’ personal property,

retirement accounts, and vehicles. The court awarded Husband his dental practice, finding

that it had little value due to his being a sole practitioner, and that any value it did have, such

as for equipment, was offset by the $100,000 loan Husband owed to his parents. The court

ordered that the proceeds from the sale of the parties’ condominiums be applied first to an

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outstanding mortgage owed for the renovation of the condos, then to $30,000 in credit card

debt held in Husband’s name only, which debt the court found to be marital. Any remaining

funds from the sale of the condominiums were to be split equally between the parties.

Wife appeals the trial court’s ruling, and raises three issues on appeal, as restated from

her brief:

(1) Whether the trial court failed to equitably divide the parties’ marital property when

it awarded Husband his entire dental practice;

(2) Whether the trial court failed to equitably divide the parties’ marital property when

it allowed credit card debt held in Husband’s name only to be paid off with proceeds

from the sale of the parties’ condominiums; and

(3) Whether the trial court erred when it did not award alimony to Wife?

II. Standard of Review

Because this case was tried by the court, sitting without a jury, we review the trial

court’s findings of fact de novo with a presumption of correctness, unless the evidence

preponderates otherwise. Tenn. R. App. P. 13(d). If the evidence does not preponderate

against the court’s findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d).

No presumption of correctness, however, attaches to the trial court’s conclusions of law and

our review is de novo. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).

For the evidence to preponderate against a trial court's finding of fact, it must support

another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs.,

40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster

Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). Where the trial court does not

make findings of fact, there is no presumption of correctness and we “must conduct our own

independent review of the record to determine where the preponderance of the evidence lies.”

Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999). Furthermore, when the resolution of

the issues in a case depends upon the truthfulness of witnesses, the trier of fact, who has the

opportunity to observe the witnesses in their manner and demeanor while testifying, is in a

far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910

S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.

1997). The weight, faith, and credit to be given to any witness' testimony lies in the first

instance with the trier of fact, and the credibility accorded will be given great weight by the

appellate court. See id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.

1997). “If the trial court's factual determinations are based on its assessment of witness

credibility, this Court will not reevaluate that assessment absent clear and convincing

evidence to the contrary.” Heffington v. Heffington, No. M2009-00434-COA-R3-CV, 2010

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WL 623629 (Tenn. Ct. App. Feb. 19, 2010).

III. Division of Marital Property

The division of marital property, including its classification and valuation are findings

of fact. Woodword v. Woodword, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007). Trial courts

have “wide latitude in fashioning an equitable division of marital property.” Altman v.

Altman, 181 S.W.3d 676, 683 (Tenn. Ct. App. 2005). Accordingly, the trial court’s decisions

regarding classification, valuation and division of property are reviewed de novo with a

presumption of correctness unless the evidence preponderates otherwise. Farrar v. Farrar,

553 S.W.2d 741, 743 (Tenn. 1977).

When making its division of property, the trial court must first classify the property.

Tennessee recognizes two distinct types or classes of property: “marital property” and

“separate property.” The distinction is important because Tenn. Code Ann § 36-4-121(a)

“provides only for the division of marital property.” See also Batson v. Batson, 769 S.W.2d

849, 856 (Tenn. Ct. App. 1988). Dividing a marital estate is not a mechanical process; the

goal is to fashion an equitable remedy considering the non-exclusive factors set forth in

Tenn. Code. Ann § 36-4-121(c). The division of marital property is rooted in equity, and

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a division of marital property is not rendered inequitable merely because it is not precisely

equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424,

These statutory factors are: 2

1. The duration of the marriage;

2. The age, physical and mental health, vocational skills, employability, earning

capacity, estate, financial liabilities and financial needs of each of the parties;

3. The tangible or intangible contributions by one party to the education, training or

increased earning power of the other party;

4. The relative ability of each party for future acquisition of capital assets and income;

5. The contribution of each party to the acquisition, preservation, appreciation,

depreciation or dissipation of the marital or separate property, including the

contribution of a party to the marriage as homemaker, wage earner or parent with

the contribution of a party as homemaker or wage earner to be given the same

weight if each party has fulfilled his role;

6. The value of the separate property of each party;

7. The estate of each party at the time of the marriage;

8. The economic circumstances of each party at the time of the marriage;

9. The tax consequences to each party associated with the reasonably foreseeable sale

of the asset and other reasonably foreseeable expenses associated with the asset;

10. The amount of social security benefits available to each spouse;

11. And such other factors as are necessary to considerthe equities between the parties.

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427 (Tenn. 1988), or because each party does not receive a share or portion of each marital

asset. Cohen, 937 S.W.2d at 833 (citing Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct.

App. 1994)).

Wife argues that the trial court failed to equitably divide the marital estate when it (1)

awarded Husband his entire dental practice; and (2) paid credit card debt held in Husband’s

name only with proceeds from the sale of marital property.

A. Dental Practice

“The valuation of a marital asset is a question of fact. It is determined by considering

all relevant evidence, and each party bearsthe burden of bringing forth competent evidence.”

Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998) (citing Wallace v. Wallace,

733 S.W.2d 102, 107 (Tenn. Ct. App. 1987)). “If the evidence of value is conflicting, the

trial judge may assign a value that is within the range of values supported by the evidence.”

Kinard, 986 S.W.2d at 231 (citing Ray v. Ray, 916 S.W.2d 469, 470 (Tenn. Ct. App. 1995);

Wallace, 733 S.W.2d at 107)). “On appeal, we presume the trial judge's factual

determinations are correct unless the evidence preponderates against them.” Kinard, 986

S.W.2d at 231 (citing Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996)).

In Tennessee, a professional practice, such as a dental practice, may be considered a

marital asset. See Argo v. Argo, 1985 WL 673374 (Tenn. Ct. App. April 11, 1985). The

court here concluded that Husband’s sole practitioner dental practice was a marital asset.

Proper valuation of this marital asset, however, includes only the value of the practice’s

tangible assets and does not include the practice’s future earnings or professional goodwill.

See Argo, 1985 WL 673374, at *4-5; Smith v. Smith, 709 S.W.2d 588, 592 (Tenn. Ct. App.

1985). In Argo, this Court first answered the question of whether a sole practitioner dentist’s

future earnings were a relevant consideration when dividing the marital estate. In holding

that a sole practitioner dentists’s earnings were not subject to division of marital property,

we stated:

The future value of a professional practice depends upon many

factors that are speculative. Husband might choose not to

practice any longer, or he might even fail at his practice. His

dental practice, or his right to practice, is personal to him. It is

not transferable in the open market, it will terminate at his death;

it is not inheritable, nor can it be assigned, sold, transferred, or

pledged. It has none of the usual attributes of property.

Furthermore, unlike an award of alimony . . . which can be

adjusted after the divorce so as to reflect unanticipated changes

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in the parties’ circumstances, a division of property under the

statute may not be adjusted in the future.

Argo v. Argo, 1985 WL 673374, at *5.

Likewise, “professional goodwill is not a marital asset to be considered in making an

equitable distribution of the marital estate.” Cunningham v. Cunningham, No. W1999-

02054-COA-R3-CV, 2000 WL 33191364, at *3 (Tenn. Ct. App. Oct. 20, 2000) (citing Smith

v. Smith, 709 S.W.2d 588, 592 (Tenn. Ct. App. 1985)). In a sole practitioner dental practice,

the success of the business is dependent on the skill and reputation of the dentist. As stated

in Cunningham:

[T]he goodwill of a business, although essentially a thing of

value, does not have a property interest separate from the

business itself. Goodwill is, in essence, the reputation of the

professional practice. The reputation of the practice, hence its

goodwill, is valuable to the owner of the practice, and it cannot

be separately sold or pledged.

Cunningham, 2000 WL 33191364, at *3.

Rather than measuring its value by goodwill or potential future earnings, the correct

method for valuing a sole practitioner dental practice is the value of its tangible assets such

as cash on hand, accounts receivable, and equipment, less any encumbrances on these assets.

See Argo, 1985 WL 673374, at *5; Cunningham, 2000 WL 33191364, at *3.

In the instant case, the court heard little evidence regarding the value of the assets of

the dental practice, and there was no expert testimony concerning the value of the practice.

As noted above, Husband testified that his parents had loaned him approximately $100,000

as start-up money to purchase equipment for the practice in 2001. Husband’s father testified

that he had not forgiven the loan and expects to be paid back by his son. Wife’s only

evidence was a 2007 personal financial statement submitted by both parties for a bank loan

on which the words “Dental Practice (Appraised 2004) – $197,000" were handwritten. When

cross-examining Husband regarding thisfinancialstatement, Wife’s counsel only questioned

Husband regarding the omission of the $100,000 loan from Husband’s parents, but did not

elicit testimony regarding this alleged value.

After weighing the evidence, the court found the practice to have “little value.”

Specifically, the court stated that, “due to the [Husband] being a sole practitioner and [the

fact] that he borrowed $100,000 from his parents[,] [i]t would appear . . . that the

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indebtedness owed to his parents was for equipment and it would appear whatever value he

has in his dental practice is minimal due to the debt.” Based upon this finding, the trial court

awarded Husband the dental practice and held him responsible for the debt owed to his

parents.

On appeal, Wife asserts that the court improperly valued the dental practice. We

disagree. The court properly disregarded the future earning capacity and professional

goodwill of Husband’s sole practitioner dental practice and focused instead on its tangible

assets and associated debt. See Argo, 1985 WL 673374, at *5; Cunningham, 2000 WL

33191364, at *3. Unfortunately, as discussed above, the parties submitted little credible

evidence as to the value of the tangible assets. It is the responsibility of the parties, not the

court, to propose values to marital property. Caldwell v. Caldwell, No. M2007-01205-COAR3-CV, 2008 WL 4613586, at *2 (Tenn. Ct. App. March 5, 2008) (citing Wallace v.

Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)). The parties are bound by the

evidence they present, and the trial court, in its discretion, is free to place a value on a marital

asset that is within the range of evidence submitted. Wallace, 733 S.W.2d at 107. The trial

court apparently selected a value within the permissible range, $100,000, and offset that

value by the debt owed. We find no fault with the trial court valuing the dental practice in

this manner.

Wife, however, argues that the $100,000 loan to Husband from his parents was not a

loan at all, but, rather, a gift. Specifically, Wife notes the fact that no documentation exists

evidencing the loan, and the fact that no payments were ever made. The court apparently

found Husband and his father’stestimonies concerning the nature of the $100,000 as a “loan”

to be credible. The evidence in the record does not preponderate against the trial court’s

determination that the $100,000 represented a loan. Consequently, we affirm the trial court’s

valuation of the dental practice and its award to Husband.

B. Credit Card Debt

With respect to the parties’ credit card debt, each party testified to credit card debt held

individually and allegedly accrued during the marriage. Husband had approximately $33,000

in credit card debt in his name only and approximately $12,455 on a credit card in his

business’ name. He testified that the charges on both cards were incurred during the

marriage for business and household purposes. Wife testified to approximately $28,000 in

debt on six credit cards, held in her name only, which debt she testified was incurred during

the marriage for household purposes.

Concerning marital debt, in its Final Decree of Divorce, the trial court stated:

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The Court finds the $16,000 owed on the renovation of the

business condominiums was a marital debt, which needs to be

paid, along with the $30,000 credit card debt, which was

incurred during the marriage. If more is owed on said credit

card it shall be paid by [Husband]. The Court finds that the two

indebtedness shall be paid by the monies in the attorney’s

escrow accounts. Any remaining monies shall be equally split

between the parties.

Wife maintains on appeal that the trial court erred by paying off credit card debt held

in Husband’s name with marital assets and in not doing likewise for debt held in Wife’s

name.

Our Supreme Court has stated that “marital debts are subject to equitable division in the

same manner as marital property.” Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003).

Marital debts should be distinguished from separate debts. To that end, the Alford Court

stated that “marital debts are all debts incurred by either or both spouses during the course

of the marriage up to the date of the final divorce hearing.” Id. After determining whether

certain debt is marital debt, a trial court should next allocate the marital debt between the

spouses by evaluating the following factors: “(1) the debt’s purpose; (2) which party

incurred the debt; (3) which party benefitted from incurring the debt; and (4) which party is

best able to repay the debt.” Id. at 814 (citing Mondelli v. Howard, 780 S.W.2d 769 (Tenn.

Ct. App. 1989)).

From our review of the trial court’s Final Decree, as well as its statements from the

bench, it appears that the court found only the $30,000 debt on Husband’s credit card to be

marital debt. However, the trial court failed to rule on whether the credit card in Husband’s

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business’ name (with a balance of $12,455) or the credit cards in Wife’s name (with

approximate total balances of $28,000) were separate or marital debt. Presumably these were

all marital debts as the uncontradicted testimony of each spouse was that the debts were

incurred by the parties during the course of the marriage. See Alford, 120 S.W.3d at 813.

However, it is not the purview of this Court to make that finding. Consequently, we remand

for the trial court to categorize these debts as either marital or separate. If, on remand, the

trial court finds that these are marital debts, then the trial court is required to specifically

allocate the debts between the spouses by applying the factors listed above. See id. at 814.

Consequently, we vacate this portion of the trial court’s decision and remand for a specific

determination of all marital debts and a specific allocation of all marital debts after weighing

The trial court also found a $16,057.84 second mortgage on the parties’ condominiums to be marital 3

debt. That debt is not at issue here.

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the relevant factors.

IV. Alimony

The “propriety of awarding alimony as well as the adequacy of the amount awarded

depends upon the unique facts of each case.” Lindsey v. Lindsey, 976 S.W.2d 175, 180

(Tenn. Ct. App. 1997). “The 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. Thus, this Court reviews the award, or denial,

of alimony under an abuse of discretion standard.” Broadbent v. Broadbent, 211 S.W.3d

216, 220 (Tenn. 2006) (citation omitted). The abuse of discretion standard requires us to

consider: (1) whether the decision has a sufficient evidentiary foundation; (2) whether the

court correctly identified and properly applied the appropriate legal principles; and (3)

whether the decision is within the range of acceptable alternatives. See BIF v. Service

Constr. Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988). While

we will set aside a discretionary decision if it rests on an inadequate evidentiary foundation

or if it is contrary to the governing law, we will not substitute our judgment for that of the

trial court merely because we might have chosen another alternative. State Ex Rel. Vaughn

v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

Tenn. Code Ann. § 36-5-121(i) lists the relevant factors for a court to consider when

deciding whether the payment of alimony is appropriate. Of the factors listed in section 36-

4

 These statutory factors are : 4

(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; 

(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

(continued...)

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5-121(i), the most important are the disadvantaged spouse’s need and the obligor spouse’s

ability to pay. Fickle v. Fickle, 287 S.W.3d 723, 736 (Tenn. Ct. App. 2008) (citing

Robertson v. Robertson, 76 S.W.3d 723 (Tenn. Ct. App. 2008)). Of these two factors, the

disadvantaged spouse’s need is the threshold consideration. Fickle, 287 S.W.3d at 736

(citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995)). In her counter complaint for

divorce wife, requested an award of rehabilitative alimony, in futuro alimony or in solido

alimony.

The trial court denied Wife’s request for alimony and stated the following in its Final

Decree of Divorce:

With regards to alimony, [Wife] lived way beyond her means by

obtaining large chunks of money from other men as well as

using another man’s credit card. [Wife], rather than finding

employment lived as a party girl and the Court uses that term

charitably because it believes it is much worse than just party

girl. Therefore, the Court is hereby dismissing [Wife’s] claim

for alimony.

The trial court did not recite the factors it considered in denying alimony. Of the

5

statutory factors listed in Tenn. Code Ann. § 36-5-121(i), it appears that the trial court was

referring to the marital fault of Wife in its order denying alimony. Fault is an essential

consideration in determining whether to award alimony. Tenn. Code Ann. § 36-5-121(i)(11);

Hoscheit v. Hoscheit, 1998 WL 440727, *3 (Tenn. Ct. App. Aug. 5, 1998) (citing Gilliam

v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988)). However, fault is not the only relevant

factor warranting consideration. Particularly, a trial court should carefully consider the two

(...continued) 4

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.

A trial court is not required to specifically recite the factorsit considered in determining its alimony 5

award and, when a trial court has failed to do so, “an appellate court ‘must conduct its own independent

review of the record to determine where the preponderance of the evidence lies.’” Broadbent v. Broadbent,

211 S.W.3d 216, 221-22 (Tenn. Ct. App. 2006) (quoting Crabtree v. Crabtree 16 S.W. 3d 356, 360 (Tenn.

2000)). Because we are unable to determine the disadvantaged spouse’s need and the obligor spouse’s ability

to pay in light of this Court’s decision to remand for a determination and allocation of nearly $40,000 of the

parties’ debt, we choose to vacate and remand on the issue of alimony, pending the trial court’s determination

of the issues concerning the marital debt.

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most important factors, the disadvantaged spouse's need and the obligor spouse's ability to

pay. These two factors cannot be overlooked. Furthermore, fault must not be applied

punitively against a guilty party. Tait v. Tait, 207 S.W.3d 270, 278 (Tenn. Ct. App. 2006)

(citing Gilliam v. Gilliam, 776 S.W.2d 881 (Tenn. Ct. App. 1988)).

In this case, Wife has no college degree and has limited work experience outside of

Husband’s dental practice. While Wife recently acquired her real estate license and a job,

as of the time of the hearing she had yet to earn any significant income from commissions.

On the other hand, Husband is a cosmetic dentist who earned over $140,000 each of the last

two years. Based on the record, there appears to be a significant disparity between the

parties’ current and potential incomes.

The court’s decision not to award alimony is not an impermissible result; however, we

are unable to discern from the record the court’s analysis of the statutory factors, particularly

the paramount considerations of the disadvantaged spouse’s need and the obligor spouse’s

ability to pay. Furthermore, because we remand for a specific determination and allocation

of approximately $40,000 in debt, the trial court should consider its effect on the respective

spouse’s need and ability to pay. Consequently, we vacate the trial court’s decision to deny

alimony and remand for an analysis of the factors set forth in Tenn. Code Ann. § 36-5-121(i).

V. Conclusion

For the foregoing reasons, we affirm the trial court’s valuation and award of the dental

practice to Husband. However, because the trial court did notspecifically determine whether

certain debt was separate or marital debt, and, consequently, did not allocate that debt, we

vacate the trial court’s division of marital property and debt, and remand for a determination

of the nature of the marital debt and division of same. We also vacate the trial court’s denial

of alimony, and remand for further proceedings concerning Wife/Appellant’s need for

alimony, and Husband/Appellee’s ability to pay same. Costs of this appeal are assessed onehalf to Appellant, Tonya S. Nicholson, and her surety, and one-half to the Appellee, Gregory

M. Nicholson, for which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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