IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 22, 2018 Session

DESIREE DANIELS DISTERDICK v. JOHN DISTERDICK

Appeal from the Circuit Court for Hamilton County

No. 12D184 L. Marie Williams, Judge

No. E2017-00743-COA-R3-CV

In this divorce action presenting issues concerning the classification and distribution of 

the parties’ assets, the trial court determined that an oil and gas investment purchased 

during the marriage was the wife’s separate property, as was her engagement ring. The 

trial court fashioned an equitable distribution of the parties’ marital property and debts 

and denied the wife’s claim for alimony. In doing so, the trial court excluded any 

consideration of assets formerly owned by the parties that were held by a trust at the time 

of trial. The husband has appealed. Discerning no error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Stephen S. Duggins, Chattanooga, Tennessee, for the appellant, John Disterdick.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Desiree Daniels Disterdick.

OPINION

I. Factual and Procedural Background

This appeal involves the trial court’s distribution of marital assets and debts as a 

result of the parties’ divorce. The plaintiff, Desiree Disterdick (“Wife”), filed a 

complaint for divorce in the Hamilton County Circuit Court (“trial court”) on January 17, 

2012. The parties were married in 1986 and have five children of the marriage. In 

addition, Husband had one child from a prior relationship.1 Wife alleged that she and the 

 

1 The parties’ children had all reached the age of majority by the time of trial.

06/18/2018
2

defendant, John Disterdick (“Husband”), were experiencing irreconcilable differences or, 

in the alternative, that Husband was guilty of inappropriate marital conduct. Wife sought, 

inter alia, an award of alimony as well as the trial court’s equitable distribution of the 

parties’ marital estate.

On February 15, 2012, Husband moved the trial court for an order directing Wife 

to disburse $5,000.00 to him from a trust fund to enable Husband to retain an attorney. 

Husband asserted that Wife and her mother were the trustees of the fund, of which 

Husband and Wife were equal beneficiaries. According to Husband, Wife had recently 

refused to deposit his share of the trust income into their joint account. Husband claimed 

that his only regular monthly income was $1,525.00 in Social Security benefits; $198.00 

from the Screen Actors’ Guild; and approximately $400.00 in sales commissions. On 

March 9, 2012, the trial court entered an order directing Wife to pay $2,500.00 from 

marital funds to Husband’s attorney. The court noted that at the final hearing, the court 

would consider the amounts paid to each party’s attorney and the source of those funds 

when distributing the parties’ marital property.

On May 10, 2012, Husband filed a motion seeking to replace the trustee of the 

Toluca Park Square Trust (“the Trust”) and to transfer control of the Trust and another 

investment, the Soladino investment (“Soladino”), to an independent third party. 

Husband asserted that he had originally established the Trust from his separate, 

premarital assets in 1989. Husband claimed that he had also “located, initiated and 

funded” Soladino, which was an oil and gas investment. According to Husband, although 

Wife and her mother were named as the trustees of the Trust several years prior, he had 

historically managed the affairs of the Trust. Husband also claimed that he primarily had 

managed the business of Soladino, despite the fact that it was held in Wife’s name. 

Husband asserted that when Wife decided to file for divorce, she prevented Husband 

from continuing to manage these investments and refused to distribute Husband’s portion 

of the income from these investments to him. Husband alleged that Wife had also 

ignored tax responsibilities and other obligations with respect to these assets. Husband 

requested that the court transfer control of these investments to an independent third 

party.

Husband also filed an answer and counterclaim on May 17, 2012, reiterating his 

position concerning the Trust and Soladino. Husband asserted that he was seventy years 

of age and retired, with little income independent of these investments. Husband again 

asked the trial court to transfer administration of the Trust and Soladino to a third party 

and to consider Wife’s dissipation of these assets in its ultimate distribution of property. 

On June 5, 2012, Judge Jeffrey Hollingsworth entered an order recusing himself 

from this matter. Husband subsequently filed a motion seeking alimony pendente lite on 
3

June 28, 2012. In this motion, Husband stated that such alimony might be unnecessary if 

the trial court granted his motion regarding transfer of the administration of the Trust and 

Soladino. Husband filed a statement of income and expenses, demonstrating that 

although his monthly expenses averaged $3,620.00, his total monthly income was only 

$2,191.00. 

On February 7, 2013, Husband filed a renewed motion seeking to replace Wife as 

the trustee of the Trust. In this motion, Husband stated that the parties had reached a 

temporary resolution of this matter but that Wife refused to authorize her attorney to sign 

the resultant order. A subsequent mediation was attempted on April 3, 2013, with no 

settlement achieved. Thereafter, on April 4, 2013, Husband filed yet another motion 

seeking Wife’s replacement as trustee of the Trust as well as an award of alimony 

pendente lite. 

Husband filed a subsequent motion on August 15, 2013, seeking the trial court’s 

approval regarding a pending contract for sale of the marital residence. The court 

approved the sale of the marital residence in an order dated October 14, 2013. Relative 

thereto, the court directed that certain debts would be paid from the proceeds of the sale 

of the home, with the remaining net proceeds to be deposited into the registry of the 

court. 

On February 18, 2014, Husband filed a motion requesting that the trial court direct 

Wife to resume paying Husband’s automobile insurance, as well as the automobile 

insurance for the parties’ adult children, as she had in the past. Husband asserted that 

Wife had listed this expense on her statement of expenses and relied upon same as a basis 

for maintaining control over Soladino. Husband also alleged that Wife had ceased paying 

the mortgage payments on the parties’ parcels of unimproved real property known as the 

“Shelter Cove lots,” such that this property was in danger of foreclosure. Husband 

further sought an award of sanctions against Wife. 

On March 27, 2014, the trial court, with Judge L. Marie Williams now presiding, 

entered an order directing that $2,000.00 being held in escrow (as a result of a 

prospective buyer failing to close the sale of the marital residence) be applied toward the 

overdue mortgage payments for the Shelter Cove lots. The court also awarded a sanction 

of $1,000.00 to be charged against Wife at the time of the final judgment’s entry. On 

March 17, 2016, Wife filed a motion seeking to withdraw funds for payment of fees and 

improvements related to the Shelter Cove lots from the monies on deposit with the court 

from the sale of the marital residence. The court granted this motion, noting the parties’ 

agreement thereto, by order dated March 31, 2016. 
4

On April 28, 2016, Wife filed a motion, pursuant to Tennessee Rule of Civil 

Procedure 12.03, seeking judgment on the pleadings concerning issues related to the 

Trust. Wife asserted that the Trust was the owner of the Trust assets while Husband and 

Wife were merely income beneficiaries. Wife further averred that because the parties no 

longer owned the Trust corpus, and because the Trust was not a party to these 

proceedings, the trial court could neither divide the Trust property nor in any way reform 

the Trust as Husband sought in his counterclaim. The trial court subsequently granted 

this motion by order dated May 27, 2016.

On June 24, 2016, Wife filed an income and expense statement, claiming monthly 

income of $2,500,00 and monthly expenses of $4,393.00, resulting in a monthly shortfall 

of $1,893.00. Wife also filed an asset and liability statement along with her proposed 

division of marital assets. On her asset statement, Wife listed “Soladino Energy 

Partners” as her separate property, valuing same at $25,000.00. Husband filed an 

updated income and expense statement, demonstrating that he had sufficient monthly 

income to pay his current expenses of $4,634.00 with no funds remaining. 

Following a continuance of the parties’ trial date, Wife filed a motion for contempt 

on July 22, 2016, alleging that Husband had encumbered the parties’ Porsche automobile 

in violation of the statutory injunction. On August 4, 2016, Wife filed a motion 

requesting that the trial court require Husband to make the payments for the Shelter Cove 

lots pending trial. Wife alleged that she had been making those payments from her 

separate funds. The court entered an order on August 17, 2016, requiring Husband to pay 

the respective lot payments for August and September 2016. 

Both parties subsequently filed proposed asset distributions. Wife again valued 

Soladino at $25,000.00 and identified the asset as her separate property. Husband listed 

this asset as marital property valued at $250,000.00. 

The trial court conducted a bench trial on October 4, 2016, regarding the issues of 

property classification and distribution, Wife’s claim for alimony, and Wife’s allegation 

of contempt. The court found that the parties had been married since 1986 and had five 

adult children. The court noted that Husband was born in 1942 and that Wife was born in 

1960. The court further noted that prior to the marriage, Wife acquired an associate 

degree and earned income from beauty pageants and public appearances. At the time the 

parties were married, Wife owned a bank account containing $30,000.00 and had 

invested in certain stock. During the marriage, Wife completed a bachelor’s degree in 

finance. The court found that Husband was employed in the film industry prior to the 

marriage. At the time of trial, Husband was receiving social security benefits of 

$1,595.00 per month.
5

According to the trial court’s findings, the parties experienced “many 

interpersonal difficulties throughout most of the marriage with evidence of physical and 

emotional abuse by the Husband against the Wife. However, there is evidence to 

establish that he ‘mellowed out’ in the last ten years or so.” The court noted that the 

downturn in the economy, specifically the oil industry, had brought the parties to divorce. 

The court further found that the parties depended on the income derived from Soladino, 

which had recently lost most of its income-producing capability due to falling oil prices. 

Therefore, the parties could no longer afford the lifestyle to which they had become 

accustomed. The court also addressed the fact that the Trust, of which the parties were 

beneficiaries, was not a marital asset.

The trial court explained that before the marital property could be distributed, the 

property had to be properly classified. The court found that the evidence 

“overwhelmingly” established that Soladino was Wife’s separate asset. The court also 

found that the value of Soladino had decreased substantially, such that it should be valued 

at $42,000.00. The court determined that Wife’s jewelry, an art print, and a fur coat were 

also her separate property and that certain items of personalty were Husband’s separate 

property. The remaining items of property were found to be marital and were distributed 

as follows:

Asset: Awarded to Wife: Awarded to Husband:

Proceeds from sale of marital residence $24,541.66

Shelter Cove lots $169,000.00

Wife’s Regions Bank account 1,500.00

Wife’s EPB Credit Union account 64.99

Husband’s EPB Credit Union account 9,700.86

USAA 309.98

1998 Ford van 1,500.00

2005 Nissan Murano 3,000.00

2009 Saturn Vue 6,200.00

1981 Porsche 102,000.00

Stuffed eagle 3,000.00

Scrimshaw Whale’s Tooth (2) 1,150.00 1,150.00

Antique Persian rug 4,000.00

Generator 500.00

Furnishings (in possession of each) 5,000.00 5,000.00

Film Equipment 600.00

Total:2$140,456.65 $197,760.84

 

2 The trial court’s order did not show a calculation of the total award of assets to Wife or Husband. These 

totals have been calculated by adding the value of the assets in each party’s column.
6

The trial court then distributed the parties’ marital debt as follows:

Liability: Assessed to Wife: Assessed to Husband:

Mortgage – Shelter Cove lots $124,000.00

Property tax – Shelter Cove lots 1,484.00

Chase credit card $9,000.00

Wife’s attorney’s fees 30,000.00

Husband’s attorney’s fees 25,000.00

Ashley Furniture 1,100.00

Total:3$40,100.00 $150,484.00

The trial court determined that Wife had paid most of the marital expenses as well 

as expenses for the parties’ adult children during the pendency of the litigation. The 

court also found that any amounts expended for the parties’ adult children were gifts to 

those children. Pursuant to an Agreed Order entered on January 7, 2013, Wife received 

all of the income from Soladino and each party received one-half of the trust income 

pending trial. 4 The court found that Wife had received at least $330,993.00 in income 

from Soladino during the pendency of the divorce proceedings, which income the court 

determined to be Wife’s separate property because it found Soladino to be Wife’s 

separate property. Wife also received $137,000.00 in marital income. During the same 

time period, the court found that Husband received about $200,000.00 in income.

The trial court also determined that Wife had utilized approximately $42,000.00 of 

her separate assets to preserve the marital residence and Shelter Cove lots, which were 

marital assets. The court thus added $40,000.00 to the assets allocated to Husband. 

Because Wife contributed marital and separate funds to maintain the household and pay 

joint bills during the pendency of the litigation, the court expressly found the above 

distribution to be equitable.

With regard to the statutory factors contained in Tennessee Code Annotated § 36-

4-121, the trial court found that the parties’ marriage was of substantial duration. The 

court noted that it had considered and addressed the parties’ ages, health, vocational 

skills, and other related factors. The court further found that Wife did have greater 

employability than Husband at the time of trial and that all remaining factors should be 

equally weighted.

 

3 The trial court’s order did not show a calculation of the total amount of liabilities assessed to Wife or

Husband. These totals have been calculated by adding the value of the liabilities in each party’s column.

4 This order appears in the technical record as an exhibit presented during trial.
7

Concerning alimony, the trial court determined that because the parties’ respective 

needs and abilities to pay were substantially equal, alimony would not be awarded. The 

court also declined to impose sanctions upon Husband for his violation of the statutory 

injunction due to the encumbrance placed on the Porsche automobile.

On January 13, 2017, Husband filed a motion seeking additional findings and/or 

alteration of the trial court’s judgment, arguing that the court had failed to address the 

matter of the parties’ boat as well as additional loans listed on Husband’s liability 

statement. Five days later, the trial court entered a “Final Decree,” incorporating its 

earlier order and declining to address Husband’s motion. On February 9, 2017, Wife 

filed a motion to alter or amend, asserting that the trial court should (1) require Husband 

to take any action necessary to remove Wife from the liability associated with the Shelter 

Cove lots, (2) require Husband to have the lien removed from the Porsche, (3) award the 

parties’ boat to Wife, and (4) amend the decree to reflect that funds on deposit with the 

clerk’s office from the sale of the marital residence actually totaled $23,493.40 and 

should be released to Wife immediately. 

The trial court entered an order regarding the motions on March 7, 2017, wherein 

it awarded the parties’ boat to Wife while requiring Husband to pay any lien he had 

placed thereon. Finding that Wife had utilized her separate funds to support the family 

and pay joint obligations, the court also ordered that Husband was to be solely 

responsible for any loans he owed to individuals. The court further ordered Husband to 

take action to have Wife’s name removed from the debt on the Shelter Cove lots and to 

have the lien on the Porsche released. The court amended the Final Decree to reflect that 

Wife would receive $23,493.40 in monies on deposit with the court clerk’s office and 

ordered those funds to be released to Wife within thirty days. Husband timely appealed.

II. Issues Presented

Husband presents three issues for our review, which we have restated slightly:

1. Whether the trial court erred by classifying Soladino and the 

diamond ring as Wife’s separate property.

2. Whether the trial court erred by failing to divide the parties’ marital 

property equitably.

3. Whether the trial court erred by excluding any consideration of 

issues related to the Trust.
8

Wife presents the following additional issues, which we have also restated slightly:

4. Whether Husband’s appeal should be dismissed for failure to comply 

with Tennessee Rule of Appellate Procedure 7.

5. Whether the trial court erred by determining that the amounts 

expended by Wife for the parties’ adult children during the litigation, 

pursuant to the January 7, 2013 order, were gifts to those children.

6. Whether the trial court erred by failing to award Wife alimony in 

solido to reimburse her for Husband’s half of payments made 

pursuant to the January 7, 2013 order.

7. Whether Wife should receive an award of attorney’s fees on appeal.

III. Standard of Review

In a case involving the proper classification and distribution of assets incident to a 

divorce, our Supreme Court has elucidated the applicable standard of review as follows:

This Court gives great weight to the decisions of the trial court in 

dividing marital assets and “we are disinclined to disturb the trial court’s 

decision unless the distribution lacks proper evidentiary support or results 

in some error of law or misapplication of statutory requirements and 

procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 

1996). As such, when dealing with the trial court’s findings of fact, we 

review the record de novo with a presumption of correctness, and we must 

honor those findings unless there is evidence which preponderates to the 

contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 

S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position 

than this Court to observe the demeanor of the witnesses, the weight, faith, 

and credit to be given witnesses’ testimony lies in the first instance with the 

trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 

1991). Consequently, where issues of credibility and weight of testimony 

are involved, this Court will accord considerable deference to the trial 

court’s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. 

App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 

S.W.2d 912, 915 (Tenn. 1999)). The trial court’s conclusions of law, 

however, are accorded no presumption of correctness. Langschmidt v. 

Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
9

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Questions relating to the classification

of assets as marital or separate are questions of fact. Stratienko v. Stratienko, 529 S.W.3d 

389, 398-99 (Tenn. Ct. App. 2017), perm. app. denied (Aug. 16, 2017) (citing Bilyeu v. 

Bilyeu, 196 S.W.3d 131, 135 (Tenn. Ct. App. 2005). See Manis v. Manis, 49 S.W.3d 

295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of 

marital property “ordinarily defer to the trial judge’s decision unless it is inconsistent 

with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance 

of the evidence.”). 

IV. Rule 7 of the Rules of the Court of Appeals of Tennessee

As a threshold issue, Wife argues that Husband’s appeal should be dismissed 

because Husband failed to comply with the requirements of Rule 7 of the Rules of the 

Court of Appeals of Tennessee. Rule 7 requires that a brief in a domestic relations case 

that raises an issue regarding classification or division of property contain a tabulation of 

the parties’ property and debts with values assigned by each party and the trial court, 

including citations to the record identifying where such information may be found. See

Tenn. Ct. App. R. 7. Husband provided no such tabulation in his original brief; however, 

he did comply with Rule 7’s requirements in his reply brief.

 As this Court has explained with regard to the requirements of Rule 7:

This Court has previously held “‘where an appellant fails to comply 

with this rule, that appellant waives all such issues relating to the rule’s 

requirements.’” Slaughter v. Slaughter, No. W2007-01488-COA-R3-CV, 

2008 WL 1970491, at *2 (Tenn. Ct. App. May 8, 2008) (quoting Stock v. 

Stock, No. W2005-02634-COA-R3-CV, 2006 WL 3804420, at *5, n. 3 

(Tenn. Ct. App. 2006) (quoting Howell v. Howell, No. W2001-01167-

COA-R3-CV, 2002 WL 1905307, at *4 (Tenn. Ct. App. 2002) (citing Bean 

v. Bean, 40 S.W.3d 52 (Tenn. Ct. App. 2000)). “This Court is under no 

duty to search a trial court record in order to discern the valuation of the 

couple’s property.” Slaughter, 2008 WL 1970491 at *2 (citations omitted). 

This Court has previously found issues involving the valuation and division 

of property waived for failure to comply with Rule 7. See, e.g., Slaughter 

v. Slaughter, No. W2007-01488-COA-R3-CV, 2008 WL 1970491 (Tenn. 

Ct. App. May 8, 2008); Bean v. Bean, 40 S.W.3d 52 (Tenn. Ct. App. 2000); 

Durant v. Durant, No. M2001-00691-COA-R3-CV, 2002 WL 772923 

(Tenn. Ct. App. April 30, 2002).

Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010 WL 2612688, at *8 (Tenn. Ct. 

App. June 30, 2010). Because Husband remedied this deficiency by providing a proper 
10

Rule 7 tabulation in his reply brief, we determine that no waiver has occurred. We will 

therefore proceed to address the parties’ issues on the merits.

V. Classification of Separate Property

Husband argues that the trial court improperly classified Soladino and Wife’s 

diamond engagement ring as her separate property. Regarding classification of property

pursuant to divorce, this Court has previously held:

Because Tennessee is a “dual property” state, a trial court must 

identify all of the assets possessed by the divorcing parties as either 

separate property or marital property before equitably dividing the marital 

estate. Separate property is not subject to division. In contrast, Tenn. 

Code Ann. § 36-4-121(c) outlines the relevant factors that a court must 

consider when equitably dividing the marital property without regard to 

fault on the part of either party. An equitable division of marital property is 

not necessarily an equal division, and § 36-4-121(a)(1) only requires an 

equitable division.

McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140, at *3-4 (Tenn. 

Ct. App. Apr. 16, 2010) (internal citations omitted). Issues regarding the classification of 

assets present questions of fact. See Stratienko, 529 S.W.3d at 398-99. Our review of the 

trial court’s ruling regarding a question of fact is de novo with a presumption of 

correctness. See Tenn. R. App. P. 13(d); Burress v. Shelby Cty., 74 S.W.3d 844, 846 

(Tenn. Ct. App. 2001). 

Concerning the definition of “marital property,” Tennessee Code Annotated § 36-

4-121(b)(1)(A) (2017) provides in pertinent part:

“Marital property” means all real and personal property, both tangible and 

intangible, acquired by either or both spouses during the course of the 

marriage up to the date of the final divorce hearing and owned by either or 

both spouses as of the date of filing of a complaint for divorce, except in 

the case of fraudulent conveyance in anticipation of filing, and including 

any property to which a right was acquired up to the date of the final 

divorce hearing, and valued as of a date as near as reasonably possible to 

the final divorce hearing date. 
11

By contrast, “separate property” is defined as:

(A) All real and personal property owned by a spouse before marriage, 

including, but not limited to, assets held in individual retirement 

accounts (IRAs) as that term is defined in the Internal Revenue Code 

of 1986 (26 U.S.C.), as amended;

(B) Property acquired in exchange for property acquired before the 

marriage;

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

marriage except when characterized as marital property under 

subdivision (b)(1);

(D) Property acquired by a spouse at any time by gift, bequest, devise or 

descent;

(E) Pain and suffering awards, victim of crime compensation awards, 

future medical expenses, and future lost wages; and

(F) Property acquired by a spouse after an order of legal separation 

where the court has made a final disposition of property.

Tenn. Code Ann. § 36-4-121(b)(2).

It is well settled that assets acquired during a marriage are presumed to be marital 

property and that a party desirous of disputing this classification has the burden of 

proving by a preponderance of the evidence that the asset is separate property.

See Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App. 2007). This presumption can 

be rebutted, however, by evidence of circumstances or communications clearly indicating 

an intent that the property remain separate. See Batson v. Batson, 769 S.W.2d 849, 858 

(Tenn. Ct. App. 1989).

A. Soladino

Husband asserts that he was the one who originally purchased Soladino through 

the Trust and also managed this asset throughout the bulk of the marriage. According to 

Husband, the title to Soladino was later changed to Wife’s name rather than the Trust for

“tax reasons.” Husband claims that the purchase funds used to buy Soladino from the 

Trust when the ownership transfer occurred were withdrawn from a bank account that 
12

was regularly used to pay marital obligations and contained funds from marital income 

streams. 

By contrast, Wife contends that the trial court properly found Soladino to be her 

separate property. Wife argues that the evidence demonstrated that she purchased this 

asset with her separate funds. The trial court agreed, stating that “the evidence 

overwhelmingly substantiates the position of [Wife] that the property is separate.” Upon 

careful review, we determine that the evidence does not preponderate against the trial 

court’s finding.

In ruling on this issue, the trial court considered the deposition testimony of Doug 

Eberts, a California resident and the owner of Sierra Resources, an oil and gas operator. 

Mr. Eberts testified that Soladino was formed in the early 1990s when various limited 

partners purchased units at $25,000.00 each. According to the testimony of Mr. Eberts 

and the parties, the parties purchased one such unit, which was originally purchased 

through and held as part of the Trust. 

Mr. Eberts further testified that some years later, Husband contacted him via 

telephone and asked him to place the asset in Wife’s sole name because Husband had 

“issues with the IRS.” Although Mr. Eberts could not recall the details surrounding how 

the ownership change was effectuated, he testified that the income checks were sent to 

Wife in her sole name from that date forward. Mr. Eberts further reported that annual K1s had been generated from that date forward, reflecting Wife as an individual limited 

partner. Mr. Eberts related that Husband recently contacted him and asked if ownership

of the investment could be “subtly” changed. Mr. Eberts informed him that any transfer

would have to be made by Wife because she was the owner.

It is undisputed that Soladino was originally an asset owned by the Trust. It is also 

undisputed that during the parties’ marriage, in or around 1997, the Trust sold its interest 

in Soladino back to Mr. Eberts’s company. Wife testified that she then purchased that 

interest from Mr. Eberts’s company, utilizing $25,000.00 from her “separate” bank 

account. Wife identified this bank account as her Regions Bank account, in which she 

had deposited premarital savings. The exhibits demonstrate that this bank account was 

held solely in Wife’s name. In relevant part, the trial court found in its order:

Much of the proof in this case focused on the marital or separate 

nature of Soladino. The Court finds the evidence overwhelmingly 

substantiates the position of [Wife] that the property is separate. Both 

parties relied to a large extent on the testimony of Robert Eberts concerning 

value of, history of, and title to Soladino. The Court found Mr. Eberts’

testimony very persuasive. He is clear in his recollection that [Husband]
13

instructed him to put Soladino in the name of [Wife]. He is clear that he 

titled it on [Husband’s] instruction so that [Wife] was the 100 percent 

owner of any interest either of them had in Soladino. Further, the evidence 

establishes the $25,000.00 interest held by the Disterdicks was purchased at 

[Husband’s] instruction and held as Toluca Park Square Trust. That would 

have been in 1992. At some time prior to 1997, [Husband] instructed that 

any future checks go to [Wife] and that the interest be titled in her name. 

There also is evidence that [Wife] paid cash to Robert Eberts for the 

partnership interest in the amount of $25,000.00. [Husband] did not request 

the interest be placed back in his name until after divorce was on the 

horizon and he was informed at that time that could not be accomplished.

Husband asserts that the trial court’s ruling was erroneous because Wife admitted

that her Regions Bank account, the undisputed source of funds for Wife’s purchase of the 

Soladino interest, contained monies from marital income streams and was used to pay 

marital expenses. Although Wife testified that her Regions Bank account had been 

utilized to pay “family” and “marital” expenses for several years, she stated that the 

monies in the account either came from premarital sources, her share of the Trust income, 

or the income from Soladino. Wife acknowledged that she had owned the Regions Bank 

account for many years; however, the sole proof presented regarding the source of funds 

that had been deposited therein prior to the late-1990s transfer of ownership in Soladino 

was Wife’s testimony that the funds at that time came from premarital savings.

Tennessee Code Annotated § 36-4-121(b)(2)(A) and (B) provide that “[a]ll real 

and personal property owned by a spouse before marriage” as well as “[p]roperty 

acquired in exchange for property acquired before the marriage” will be considered a 

spouse’s separate property. As our Supreme Court has elucidated:

In addition to the provisions of Tenn. Code Ann. § 36-4-121(b)(1)(b), 

courts in Tennessee have recognized two methods by which separate 

property may be converted into marital property: commingling and 

transmutation. Although this Court previously has not addressed 

commingling and transmutation, several opinions of the Court of Appeals 

have explained the concepts as follows:

[S]eparate property becomes marital property [by 

commingling] if inextricably mingled with marital property or 

with the separate property of the other spouse. If the separate 

property continues to be segregated or can be traced into its 

product, commingling does not occur . . . . [Transmutation] 

occurs when separate property is treated in such a way as to 
14

give evidence of an intention that it become marital property .

. . . The rationale underlying these doctrines is that dealing 

with property in these ways creates a rebuttable presumption 

of a gift to the marital estate. This presumption is based also 

upon the provision in many marital property statutes that 

property acquired during the marriage is presumed to be 

marital. The presumption can be rebutted by evidence of 

circumstances or communications clearly indicating an intent 

that the property remain separate.

2 Homer H. Clark, The Law of Domestic Relations in the United States § 

16.2 at 185 (2d ed. 1987); Lewis v. Frances, No. M1998-00946-COA-R3-

CV, 2001 WL 219662, at *8, 2001 Tenn. App. LEXIS 140, at *24-25 

(Tenn. Ct. App. March 7, 2001), perm. app. denied (Tenn. Oct. 8, 2001); 

Sartain v. Sartain, 03A01-9707-CH-00297, 1998 WL 751462, at *4, 1998 

Tenn. App. LEXIS 722, at *9 (Tenn. Ct. App. Oct. 29, 1998); Hofer v. 

Hofer, No. 02A01-9510-CH-00210, 1997 WL 39503, at *3-4, 1997 Tenn.

App. LEXIS 74, at *8 (Tenn. Ct. App. February 3, 1997); Pope v. Pope, 

No. 88-58-II, 1988 WL 74615, at *3, 1988 Tenn. App. LEXIS 449, at *7-8 

(Tenn. Ct. App. July 20, 1988).

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

Wife testified that her individually titled Regions Bank account contained 

premarital savings, upon which she had previously placed a value of $30,000.00. Wife 

further testified that these premarital funds were the source of the purchase monies 

utilized for the repurchase of Soladino in the late 1990s, which asset was then titled 

solely in her name. Although Husband stated that marital income streams were deposited 

into Wife’s Regions Bank account, there is no evidence that such deposits occurred at or 

before the time of the Soladino change of ownership. 

The trial court clearly credited Wife’s testimony regarding the source of the funds 

in her Regions Bank account at the time of the ownership change. As previously 

explained, “where issues of credibility and weight of testimony are involved, this Court 

will accord considerable deference to the trial court’s factual findings.” See Keyt, 244 

S.W.3d at 327. The trial court herein found that Soladino was Wife’s separate property 

based on its view that the evidence “overwhelmingly” supported Wife’s position. We 

accord this finding great deference and determine that the evidence does not preponderate 

against it.
15

We also do not find the fact to be dispositive that Wife listed her Regions Bank 

account as a marital asset on her asset and liability statement presented at trial. As 

explained, the transfer in ownership in Soladino took place in the 1990s. Wife testified 

that the $25,000.00 with which she purchased Soladino, following the sale of such 

interest by the Trust, came from premarital savings she had amassed in her individually

titled Regions Bank account at that time. Although testimony suggested that marital 

income may have been subsequently commingled with the funds in this account, no other 

proof was presented regarding the source of funds in this account at the time of the 

Soladino purchase by Wife. Based on the evidence presented, we conclude that the 

evidence preponderates in favor of the trial court’s determination that Soladino was

Wife’s separate property because Soladino represented “[p]roperty acquired in exchange 

for property acquired before the marriage.” See Tenn. Code Ann. § 36-4-121(b)(2)(B).

B. Diamond Engagement Ring

Husband also asserts that Wife’s diamond engagement ring, which he valued at 

$35,000.00, was marital property because “costly changes [to the ring] resulted in [its] 

transmutation to marital property long after the parties married.” Husband argues that the 

ring was reset and additional diamonds were added at substantial cost following the 

parties’ marriage. Husband posits that such improvements following the parties’ 

marriage constituted transmutation of this asset to marital property. Upon thorough 

review, we disagree with Husband’s contentions regarding this issue.

The proof was undisputed that the ring was given to Wife as an engagement ring 

upon the occasion of Husband’s proposal. Engagement rings are typically regarded as 

conditional gifts, with such gift only being completed upon the occurrence of marriage 

between the parties. See Crippen v. Campbell, No. E2007-00309-COA-R3-CV, 2007 

WL 2768076, at *4 (Tenn. Ct. App. Sept. 24, 2007). Because the parties did marry, the 

engagement ring was a completed gift and Wife’s separate property. See Tenn. Code 

Ann. § 36-4-121(b)(2)(D). 

Transmutation requires evidence that separate property be “treated in such a way 

as to give evidence of an intention that it become marital property.” See Langschmidt, 81 

S.W.3d at 747. Wife testified that the engagement ring and other items of jewelry were 

gifts to her. Husband admitted that the ring was a gift, claiming that this gift was later 

improved after the marriage. However, Husband provided no proof regarding the cost of 

such improvements, how the cost was paid, or whether the improvements to the ring were 

also in the nature of a gift. The trial court found all of Wife’s jewelry, including the 

engagement ring, to be Wife’s separate property, placing a total value of $35,000.00 

thereon. We conclude that the evidence does not preponderate against the trial court’s 
16

classification of Wife’s jewelry as her separate property based on her testimony that these 

assets were gifted to her by Husband. 

 

VI. Equitable Distribution of Marital Property

Husband also argues that the trial court’s distribution of the parties’ marital 

property was inequitable because it was heavily weighted in Wife’s favor. Wife asserts 

that the distribution was equitable when considering the statutory factors. Upon our 

thorough review of the evidence presented, we agree with Wife on this issue.

The trial court awarded to Wife marital assets valued at $139,408.39.5 The court 

also awarded to Wife the parties’ boat in a subsequent order, placing a value on this asset

of $25,000.00, thus increasing her total asset award to $164,408.39. Husband was 

awarded marital assets valued at $197,760.84, plus an assessment of $40,000.00 because

Wife had expended separate funds in that approximate amount to preserve marital assets 

during the pendency of the divorce proceedings, thus increasing Husband’s share of 

marital assets to $237,760.84. 

The trial court assessed marital debt to Wife in the amount of $40,100.00 while 

Husband was assessed marital debt in the amount of $150,484.00. Husband claimed that 

he owed to third parties additional undocumented loans of $45,907.00 in value, which the 

trial court also assessed to Husband. Based on these amounts, the trial court’s 

distribution of marital assets and debts resulted in a net distribution of $124,308.39 to 

Wife and $41,369.84 to Husband. See Owens, 241 S.W.3d at 490 (“The division of the 

marital estate includes both the division of the marital property and the allocation of the 

marital debt.”). Accordingly, Wife was awarded 75% of the net marital estate, and

Husband was awarded 25% of the net marital estate. 

Our statutory scheme concerning the equitable division of marital property 

provides:

(c) In making equitable division of marital property, the court shall 

consider all relevant factors including:

(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;

 

5 This amount represents the above-totaled assets awarded to Wife minus the difference in value of the 

proceeds from the sale of the marital residence.
17

(3) The tangible or intangible contribution by one (1) party to the 

education, training or increased earning power of the other 

party;

(4) The relative ability of each party for future acquisitions of 

capital assets and income;

(5)(A) 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 its role;

(B) For purposes of this subdivision (c)(5), dissipation of assets 

means wasteful expenditures which reduce the marital 

property available for equitable distributions and which are 

made for a purpose contrary to the marriage either before or 

after a complaint for divorce or legal separation has been 

filed.

(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 the 

division of property is to become effective;

(9) The tax consequences to each party, costs associated with the 

reasonably foreseeable sale of the asset, and other reasonably 

foreseeable expenses associated with the asset;

(10) In determining the value of an interest in a closely held 

business or similar asset, all relevant evidence, including 

valuation methods typically used with regard to such assets 

without regard to whether the sale of the asset is reasonably 

foreseeable. Depending on the characteristics of the asset, 

such considerations could include, but would not be limited 

to, a lack of marketability discount, a discount for lack of 
18

control, and a control premium, if any should be relevant and 

supported by the evidence;

(11) The amount of social security benefits available to each 

spouse; and

(12) Such other factors as are necessary to consider the equities 

between the parties.

Tenn. Code Ann. § 36-4-121(c) (2017).

The trial court found this to be a marriage of substantial duration. We agree with 

that assessment. As the court noted, Husband was born in 1942, and Wife was born in 

1960. The court also found that Wife had recently obtained a bachelor’s degree in 

finance in 2012, and the evidence substantiates this finding as well. Although not 

addressed by the trial court in its order, Husband testified to holding multiple degrees,

including a bachelor’s degree in mechanical engineering, a master’s degree in business 

administration, a master’s degree in financial services, and a doctor of jurisprudence. 

Husband was also certified in the fields of financial planning and insurance. With regard 

to employability, the court found that Wife had greater opportunity for future 

employment than Husband. The court likely based this finding on the fact that Wife was 

not yet of retirement age, although the proof demonstrated that Wife had no significant 

employment history.

Regarding factor (5)(A), which concerns “[t]he contribution of each party to the 

acquisition, preservation, appreciation, depreciation or dissipation of the marital or 

separate property,” the trial court found that Wife had received over $330,000.00 in 

separate assets, representing her income from Soladino, during the pendency of the 

divorce proceedings and that she utilized a portion of these monies to contribute to the 

preservation of marital assets and payment of marital expenses. This fact appears to have 

been given great weight by the trial court in its distribution of marital property. 

Otherwise, with regard to the statutory factors, the trial court determined that the 

remaining factors weighed equally. We agree with the trial court’s findings.

As this Court has previously explained with regard to a trial court’s distribution of 

marital property:

A division of marital property is not rendered inequitable simply because it 

is not precisely equal, Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.

2002), Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996), or because 

each party did not receive a share of every piece of marital 
19

property, Morton v. Morton, 182 S.W.3d 821, 833-34 (Tenn. Ct. App.

2005); Manis v. Manis, 49 S.W.3d [295,] 306 [(Tenn. Ct. App. 2001)]. The 

fairness of the trial court’s approach is inevitably reflected in its results.

Altman v. Altman, 181 S.W.3d 676, 683 (Tenn. Ct. App. 2005); Bolin v. 

Bolin, 99 S.W.3d 102, 107 (Tenn. Ct. App. 2002).

The approach to dividing a marital estate should not be mechanical, 

but rather should entail carefully weighing the relevant factors in Tenn.

Code Ann. § 36-4-121(c) in light of the evidence that the parties have 

presented. Flannary v. Flannary, 121 S.W.3d at 650-51; Tate v. Tate, 138 

S.W.3d 872, 875 (Tenn. Ct. App. 2003); Kinard v. Kinard, 986 S.W.2d 

[220,] 230 [(Tenn. Ct. App. 1998)]. Trial courts have broad discretion in 

fashioning an equitable division of marital property, Jolly v. Jolly, 130 

S.W.3d 783, 785 (Tenn. 2004); Fisher v. Fisher, 648 S.W.2d 244, 246 

(Tenn. 1983), and appellate courts must accord great weight to a trial 

court’s division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 

(Tenn. Ct. App. 1996); Batson v. Batson, 769 S.W.2d 849, 859 [(Tenn. Ct. 

App. 1988)]. Accordingly, it is not our role to tweak the manner in which a 

trial court has divided the marital property. Morton v. Morton, 182 S.W.3d 

at 834. Rather, our role is to determine whether the trial court applied the 

correct legal standards, whether the manner in which the trial court weighed 

the factors in Tenn. Code Ann. § 36-4-121(c) is consistent with logic and 

reason, and whether the trial court’s division of the marital property is 

equitable. Jolly v. Jolly, 130 S.W.3d at 785-86; Gratton v. Gratton, No. 

M2004-01964-COA-R3-CV, 2006 WL 794883, at *7 (Tenn. Ct. App. Mar.

28, 2006) (No Tenn. R. App. P. 11 application filed); Kinard v. Kinard, 986 

S.W.2d at 231.

Owens, 241 S.W.3d at 490. See Manis, 49 S.W.3d at 306 (holding that appellate courts 

reviewing a distribution of marital property “ordinarily defer to the trial judge’s decision 

unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not 

supported by a preponderance of the evidence.”). 

In this matter, although the trial court’s distribution of marital property is not 

mathematically equal, we determine that it is equitable based on consideration of the 

statutory factors. The evidence demonstrated that each party had significant income to 

draw from following the marriage without any consideration of employment. Although 

Husband was several years older than Wife, he remained in excellent physical condition 

and had significant and varied employment experience. Wife had recently obtained a 

bachelor’s degree in finance, which would increase her employment potential, and she 

noted no significant physical ailments. Thus, it would appear that the parties enjoyed
20

relatively equal positions with regard to their ability to acquire assets and income in the 

future. Similarly, each party had contributed to the marital estate as either homemaker or 

wage earner.

Although Wife maintained a slightly larger separate estate following the divorce, 

the evidence demonstrated that Wife had contributed a substantial amount of income 

from her separate asset, Soladino, to preserving the marital assets during the pendency of 

the divorce proceedings. The trial court found this statutory factor most significant, 

thereby awarding Wife a greater share of the net marital estate. We determine that the 

manner in which the trial court weighed the factors contained in Tennessee Code 

Annotated § 36-4-121(c) is consistent with logic and reason and that the result to these 

parties was equitable. As such, we conclude that the trial court’s distribution of marital 

property does not lack proper evidentiary support and does not result in an “error of law 

or misapplication of statutory requirements and procedures.” See Keyt, 244 S.W.3d at 

327. We therefore affirm the trial court’s distribution of marital assets and debts in this 

matter.

VII. The Trust

Husband argues that the trial court erred by refusing to consider any matters 

relating to the Trust. On April 28, 2016, Wife filed a motion seeking a ruling from the 

trial court that the Trust was the owner of the Trust assets while Husband and Wife were 

merely income beneficiaries. Wife averred that because the parties no longer owned the 

Trust property, and because the Trust was not a party to these proceedings, the trial court 

could neither divide the Trust property nor in any way reform the Trust as Husband 

sought in this counterclaim. The trial court subsequently granted Wife’s motion by order 

dated May 27, 2016.

Husband contends that as a result of this ruling, the trial court refused to allow 

Wife to be questioned during trial regarding her utilization of the Trust income for 

expenditures related to marital obligations. Husband argues that if Wife were making 

expenditures from the Trust principal or income in which Husband was entitled to share, 

such expenditures should impact the court’s equitable distribution. Wife posits that the 

trial court’s ruling was correct because the Trust, rather than the parties, undisputedly 

owns the Trust assets. According to Wife, the Trust document makes clear that all 

interest in the assets transferred to the Trust belongs to the Trust and that Husband and 

Wife are simply beneficiaries of the income from the Trust for their lifetimes. We agree 

with Wife.

The Trust’s establishing declaration appears in the appellate record, and it 

provides as follows:
21

We, [R.B.M.] and John W. Disterdick, of the County of Los 

Angeles, State of California, Trustees (hereinafter referred to as “Trustees”

or “Trustee”), hereby declare that John Disterdick and Desiree Disterdick, 

husband and wife (hereinafter referred to collectively as “Trustors” and 

individually as “Trustor”) have transferred and delivered to the Trustee, 

without consideration, all of the Trustors’ right, title and interest in and to 

that certain property described in Schedule A attached hereto. All property 

now or hereinafter subject to this trust shall constitute the Trust Estate and 

shall be held, managed and distributed as herein provided. Property 

hereafter transferred to the Trustee may be described on a schedule attached 

hereto or may be reflected only on the books and records of the Trustee or 

by the transfer of record title to the Trustee with the same force and effect 

as though described in a schedule attached to this instrument. This 

Declaration of Trust, the Trust Estate and all of the trusts created hereunder 

shall be known collectively as THE TOLUCA PARK SQUARE TRUST.

(Emphasis added.) Ergo, based on the language of the initiating document, the Trust 

assets are owned by the Trust rather than the parties. 

Husband relies upon the unreported decision of Creswell v. Creswell, No. 03A01-

9804-CH-00151, 1999 WL 320434, at *1 (Tenn. Ct. App. May 21, 1999), as support for 

his contention that the Trust should have been considered a marital asset. In Creswell, 

this Court affirmed a distribution of marital property pursuant to divorce that purportedly

included the present value of certain assets held by trusts. Id. at *3. However, no 

mention is made in Creswell of the trusts’ establishing documentation or whether any 

issue was raised regarding the trial court’s classification of such assets as marital.

We determine this Court’s opinion in Wheeler v. Wheeler, No. M2012-02154-

COA-R3-CV, 2014 WL 1512828, at *8 (Tenn. Ct. App. Apr. 15, 2014), to be more 

instructive concerning the issue at hand. In Wheeler, the wife was the trustee and a 

current beneficiary of a trust established by her father’s last will and testament. Id. The 

corpus of the trust was a condominium in Florida, which had been owned by the wife’s 

father prior to his death and which was transferred to the trust upon his death. Id. The 

husband argued that this condominium “was Wife’s separate property, which 

subsequently transmuted to marital property due to repairs and improvements [the 

husband] personally made to the condominium.” Id. at *7. 

The Wheeler Court determined that the condominium was neither marital property 

nor the wife’s separate property because it was owned by the trust. Id. Specifically, the 

Wheeler Court stated:
22

According to the record, the condominium was devised to the 

Elizabeth B. Wheeler Children’s Trust, not to Wife, and it remains an asset 

of that trust. Because Wife did not inherit the condominium, it is not and 

never has been her separate property. Therefore, it could not transmute to 

marital property regardless of Husband’s efforts to maintain and improve 

the condominium. We, therefore, affirm the ruling that the condominium is 

not marital property.

Id. at *8.

Similarly, in this matter, the Trust assets were owned by the Trust rather than the 

parties. For this reason, and because the Trust was not a party to these proceedings, the 

trial court correctly ruled that it had no authority over the Trust or its assets. We 

therefore affirm the trial court’s ruling on this issue.

VIII. Payments for Adult Children and Alimony in Solido

Wife asserts that the trial court erred by concluding that any payments made for 

the benefit of the parties’ adult children were gifts to those children. According to Wife, 

because the January 7, 2013 agreed order provided that Wife would pay all “joint or 

marital expenses” during the pendency of the proceedings, including “any . . . expense 

typically paid from the parties’ joint account,” and because those expenses included

expenses for the adult children, Husband acquiesced in such payments and should have 

been assessed his half of those expenses. Wife essentially argues that because the trial 

court found that she received over $330,000.00 in separate income from Soladino during 

the pendency of these proceedings and because she expended this entire amount on 

marital expenses, including expenses for the parties’ children, the trial court should have 

awarded her alimony in solido by ordering Husband to repay his half of this amount. The 

trial court, however, determined that $42,000.00 of this income was spent on preservation 

of marital assets and assessed a like amount to Husband in the division of marital assets. 

We determine that the trial court’s approach was equitable with regard to 

equalization of the monies spent by the parties toward the preservation of marital assets 

pending divorce. In its equitable distribution of marital property, the trial court properly 

considered Wife’s expenditure of income from her separate asset to preserve marital 

assets, thereby affording Wife a greater share of the net marital estate. With regard to 

amounts expended for the benefit of the parties’ adult children, we note that “a parent 

cannot be ordered by the courts to pay child support for an adult child,” and any such 

payments made by a parent are considered to be voluntary. See Bryan v. Leach, 85 

S.W.3d 136, 151 (Tenn. Ct. App. 2001) (citing Blackburn v. Blackburn, 526 S.W.2d 463, 
23

465 (Tenn. 1975)). We therefore determine Wife’s issue regarding alimony in solido to 

be without merit.

IX. Attorney’s Fees on Appeal

Finally, Wife asserts that she should receive an award of attorney’s fees on appeal 

because Husband’s issues are without merit. Wife posits that Husband offered no 

credible arguments with regard to reversing the trial court’s classification or distribution 

of assets. Wife apparently asserts that Husband’s appeal is frivolous pursuant to 

Tennessee Code Annotated § 27-1-122, which provides:

When it appears to any reviewing court that the appeal from any court of 

record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include, but need not be limited to, costs, interest on 

the judgment, and expenses incurred by the appellee as a result of the 

appeal.

Although Husband was not successful with regard to the issues he raised, we 

determine, in our discretion, that Husband’s appeal was not so devoid of merit as to 

warrant an award of attorney’s fees to Wife. See Eberbach v. Eberbach, 535 S.W.3d 

467, 475 (Tenn. 2017) (citing Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 

2009) (“The decision to award damages for the filing of a frivolous appeal [under section 

27-1-122] rests solely in the discretion of this Court.”)); Young v. Barrow, 130 S.W.3d 

59, 67 (Tenn. Ct. App. 2003) (“A frivolous appeal is one that is devoid of merit . . . or 

one that has no reasonable chance of succeeding.”). The discretion to determine whether 

an appeal is frivolous should be exercised “‘sparingly so as not to discourage legitimate 

appeals.’” See Eberbach, 535 S.W.3d at 475 (quoting Whalum v. Marshall, 224 S.W.3d 

169, 181 (Tenn. Ct. App. 2006)). We therefore deny Wife’s request for attorney’s fees 

on appeal.

X. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in all respects. 

Wife’s request for an award of attorney’s fees on appeal is denied. We remand this 

matter to the trial court for enforcement of the judgment and collection of costs assessed 

below. Costs on appeal are taxed to the appellant, John Disterdick.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE