IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 17, 2021 Session

ELIZABETH ANNE SYKES v. CHAD STEVEN SYKES

Appeal from the Chancery Court for Williamson County

No. 47608W Joseph A. Woodruff, Judge

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No. M2020-00261-COA-R3-CV

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This appeal arises from a divorce proceeding filed by Wife in Tennessee. Husband 

objected to the trial court’s divorce jurisdiction and any custody determination concerning 

the parties’ minor children. Ultimately, the trial court found that it had jurisdiction over 

the parties’ divorce, as well as any custody determinations. In connection with granting 

the parties a divorce, the trial court awarded Wife an equalizing distribution of the marital 

assets and attorney’s fees. The trial court also found Husband to be in contempt due to his 

alleged violation of the statutory restraining order set out in Tennessee Code Annotated 

section 36-4-106(d) and his failure to return one of the parties’ minor children to Wife’s 

custody following summer visitation. Husband now appeals numerous aspects of the trial 

court’s findings. Upon our review of the record before us, we affirm in part and reverse in 

part. 

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

Affirmed in Part, Reversed in Part, and Remanded 

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Benjamin Lewis, Murfreesboro, Tennessee, for the appellant, Chad Steven Sykes.

Jacob T. Thorington, Franklin, Tennessee, for the appellee, Elizabeth Anne Sykes.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Chad Sykes (“Husband”) and Elizabeth Sykes (“Wife”) were married in 2014 in 

Williamson County, Tennessee. Shortly after their marriage, the parties relocated to 

Missouri where they purchased a home and had two children. In May of 2018, after 
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Husband became unemployed, the parties returned to Williamson County to live with 

Wife’s parents.1 

Wife filed for divorce on August 23, 2018, and Husband was personally served with 

a summons and copy of the complaint in Williamson County on the same date. As part of 

her divorce complaint, Wife alleged irreconcilable differences and, in the alternative, 

inappropriate marital conduct and that “the complaints she has against Husband occurred 

in Tennessee since the parties relocated to the state in May, 2018, up to and including that 

Husband separated from Wife in August, 2018.” Specifically, Wife alleged that Husband 

was overly controlling of her to the extent that he argued with her over her choice of and 

cost of her attire, hid food from her, and was controlling of the parties’ finances. Wife also 

requested that the trial court approve her parenting plan and name her the primary 

residential parent, award Husband “reasonable parenting time,” and require that he pay 

child support. Attached to Wife’s complaint for divorce was a form order purporting to be 

a statutory restraining order in compliance with Tennessee Code Annotated section 36-4-

106(d) but which did not accurately follow in all respects the language of the statute.2 In 

response to Wife’s filing, Husband filed a motion to dismiss the divorce complaint for lack 

of jurisdiction. Specifically, Husband contended that, at the time of her filing, Wife had 

not been a Tennessee resident for at least six months and that, because the acts complained 

of in Wife’s complaint did not occur in Tennessee, there was no basis for the trial court to 

exercise jurisdiction. Husband also argued that the trial court did not have jurisdiction over 

custody issues regarding the parties’ minor children because Tennessee was not the home 

state of the children.3

A hearing on Husband’s motion to dismiss was initially held on September 27, 2018, 

but it was continued to October 26, 2018, to allow the parties to submit supporting 

affidavits. Wife submitted various affidavits from herself and her parents, as well as 

documentation, evidencing the parties’ move to Tennessee. After the hearing on 

Husband’s motion resumed, the court issued its findings in a detailed and thorough order 

dated November 15, 2018. Therein, the trial court found jurisdiction to be proper over the 

parties’ divorce, as well as over matters involving custody of the parties’ minor children. 

Notably, the trial court found Husband’s testimony to be inconsistent and not credible 

concerning his contention that “he never subjectively intended to change his domicile to 

Tennessee.” Indeed, the trial court stated in its findings that it “place[d] very little weight 

on Husband’s testimony and [did] not credit his testimony over the countervailing evidence 

 

1

In his reply brief, Husband contends that he neither resided in nor intended to reside in Tennessee. 

However, as we will discuss in more detail later, we conclude that Husband’s statements are without merit 

due to credibility findings by the trial court and evidence contained in the record. 

2 As alluded to here and discussed later in this Opinion, the form order’s failure to accurately 

include the statutory language is of consequence in this appeal.

3 Husband also filed a complaint for divorce in Missouri after Wife filed her complaint in 

Tennessee. At some point during the pendency of the proceedings below, the Missouri complaint was 

dismissed. 
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offered by Wife’s various Affidavits filed in connection with the hearing on the pending 

Motion.” 

Following the trial court’s order on Husband’s motion to dismiss, Husband filed an 

answer to the complaint. On April 3, 2019, Wife filed a motion for temporary support and 

for a temporary parenting plan, to which she attached a statement of income and expenses, 

a child support worksheet, and a proposed parenting plan. During the pendency of the 

divorce, when Husband was still represented by legal counsel, the trial court entered 

various agreed orders concerning holiday travel arrangements for the parties’ children. 

By an order entered on May 1, 2019, the trial court permitted Husband’s counsel to 

withdraw. Husband proceeded pro se for the remainder of the divorce proceedings. After 

his counsel’s withdrawal, the parties reached an oral agreement for Husband to have his 

older son with him in Missouri for the entire summer and, according to Wife, to return the 

child in August prior to the start of school in Williamson County. During this time, the 

parties also participated in mediation, which was unsuccessful. Wife subsequently filed a 

motion to set the case for trial, which was scheduled to be heard on August 22, 2019. 

On August 15, 2019, Wife filed an ex parte request for a temporary restraining order 

to enjoin Husband from enrolling the older child in school in Missouri, as well as a motion 

requiring Husband to return the child to Tennessee. In her filing, Wife stated that Husband 

had communicated to her that he did not intend to return the child to Tennessee and that he 

was instead going to enroll him in school in Missouri. In an order entered August 16, 2019, 

the trial court granted Wife’s ex parte temporary restraining order and ordered Husband to 

appear in court with the child for a hearing on August 22, 2019. 

A hearing was held on August 22, 2019. Husband was present for the hearing, but 

the minor child was not. Husband told the trial court that he had no knowledge of its 

August 16th order. Ultimately, the trial court found that Husband did in fact receive service 

of the trial court’s order on August 16, 2019, via email, which required him to appear before 

the court with the child in Tennessee. It also found that Husband willfully violated the 

statutory restraining order set out in Tennessee Code Annotated section 36-4-106(d). Due 

to Husband’s failure to appear before the trial court with the child and his purported 

violation of the statutory restraining order, the trial court found him to be in civil contempt. 

As a result, the trial court ordered Husband to be incarcerated until the child was returned 

to Williamson County and “presented to the Magistrate at the Sheriff’s Office.” Upon 

return of the child to Wife, the trial court held that Husband’s contempt would be purged. 

The divorce case was tried by the court, and in a subsequent preliminary order 

following the trial, the trial court declared the parties divorced and provided a detailed and 

thorough analysis on its findings to date. It also adopted Wife’s parenting plan and ordered 

Husband to pay Wife child support. Further, it awarded Wife a judgment in the amount of 

$12,479.00, representing child support arrearage of $2,535.00 and attorney’s fees. 
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Thereafter, the trial court entered its “Memorandum and Order.” In this order, the trial 

court incorporated its findings of fact and conclusions from its prior preliminary order and 

further awarded Wife an equalizing distribution of the marital estate. Husband thereafter 

filed a notice of appeal. 

ISSUES PRESENTED

Husband raises six separate issues on appeal for our review, which are slightly 

restated as follows: 

1. Whether the trial court erred in determining that the Williamson County 

Chancery Court had jurisdiction over the parties’ divorce. 

2. Whether the trial court erred in determining that the Williamson County 

Chancery Court had jurisdiction over the child custody determination of the 

parties’ minor children. 

3. Whether the trial court erred in finding Husband in contempt for violation of the 

statutory restraining order and the trial court’s August 16, 2019 order. 

4. Whether the trial court erred in making its equitable distribution of marital assets 

and debts. 

5. Whether the trial court erred in awarding attorney’s fees to Wife as alimony in 

solido without applying the factors relevant to an award of alimony, including, 

but not limited to, Husband’s ability to pay. 

6. Whether the trial court erred in failing to provide Husband an opportunity to 

question or challenge the attorney’s fees of Wife’s counsel. 

In turn, Wife raises only a single additional issue on appeal, restated as follows: 

1. Whether Wife is entitled to her attorney’s fees on appeal. 

STANDARD OF REVIEW

When reviewing a trial court’s findings of fact, the appropriate standard of review 

is de novo with a presumption of correctness, unless the preponderance of the evidence is 

otherwise. Tenn. R. App. P. 13(d); Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 

2002). A trial court’s conclusions of law, however, are reviewed de novo with no

presumption of correctness. Ramsay v. Custer, 387 S.W.3d 566, 567 (Tenn. Ct. App. 2012) 

(citing State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529, 533 (Tenn. 2004)). 

DISCUSSION

Whether the Trial Court Had Jurisdiction Over the Parties’ Divorce

Husband’s first issue on appeal concerns whether the trial court erred in finding that 
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it had jurisdiction over the parties’ divorce. Specifically, he contends that it is Missouri, 

rather than Tennessee, that has jurisdiction.

Tennessee Code Annotated section 36-4-104(a) states: 

A divorce may be granted for any of the causes referenced in § 36-4-101 if 

the acts complained of were committed while the plaintiff was a bona fide 

resident of this state or if the acts complained of were committed out of this 

state and the plaintiff resided out of the state at the time, if the plaintiff or the 

defendant has resided in this state six (6) months next preceding the filing of 

the complaint. 

Tenn. Code Ann. § 36-4-104(a). 

Here, it is clear from the record that neither Husband nor Wife resided in Tennessee 

for six months preceding the filing of Wife’s complaint for divorce. Therefore, in order 

for a Tennessee court to exercise jurisdiction, there must be a finding that “the acts 

complained of were committed while the plaintiff was a bona fide resident of this state.” 

Id.; see also Wilken v. Wilken, No. W2012-00989-COA-R3-CV, 2012 WL 6727197, at *5 

(Tenn. Ct. App. Dec. 27, 2012) (“The first portion of the statute authorizes the trial court 

to exercise jurisdiction over the case ‘if the acts complained of were committed while the 

plaintiff was a bona fide resident of [Tennessee.]’”). Section 36-4-104(a) “makes 

Tennessee residency by at least one of the parties a condition precedent to a court having 

jurisdiction to grant a divorce.” Conley v. Conley, 181 S.W.3d 692, 696 (Tenn. Ct. App. 

2005) (emphasis added). Our courts have previously interpreted “residence” as used in 

section 36-4-104(a) to be synonymous with that of “domicile.” Id. (citing Brown v. Brown, 

261 S.W. 959 (Tenn. 1924); Wiseman v. Wiseman, 393 S.W.2d 892, 895 (Tenn. 1965); 

Barnett v. Barnett, No. 01A01-9605-CH-00228, 1998 WL 787043, at *3 (Tenn. Ct. App. 

Nov. 13, 1998)). “Domicile” has been defined by the Tennessee Supreme Court as: 

[T]he place where a person has his principal home and place of enjoyment 

of his fortunes; which he does not expect to leave, except for a purpose; from 

which when absent, he seems to himself a wayfarer; to which when he 

returns, he ceases to travel.

Wiseman, 393 S.W.2d at 894. In order for an individual to create a domicile in Tennessee, 

that person must “not only intend to establish a personal home in this state but must also 

act consistently with this intention.” Conley, 181 S.W.3d at 696 (citing Greene v. Greene, 

309 S.W.2d 403, 411 (Tenn. 1957)). “[T]he person must also have no present intention or 

expectation of changing his or her residence to some other state.” Id. (citing Tate v. Collins, 

622 F. Supp. 1409, 1412 (W.D. Tenn. 1985)). When making a determination as to 

domicile, a court considers an individual’s declarations and conduct, as well as “all other 

relevant facts and circumstances.” Id. (citing Wiseman, 393 S.W.2d at 895). 
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The trial court found that “[w]hile Wife and the minor children have not resided in 

Tennessee for six months preceding the filing of the Complaint for Divorce, the Court finds 

that the acts complained of regarding the Divorce occurred within this state while Wife and 

Husband were bona fide residents of Tennessee, and therefore, jurisdiction over the 

Complaint for Divorce is proper.” Specifically, it found that “Wife and Children relocated 

to Tennessee on May 3, 2018[,] and Husband moved to Tennessee after preparing the 

former marital residence to be sold.” It also noted Husband’s testimony that he “joined in 

the move with Wife to Tennessee in order ‘to work on the marriage’ for ‘as long as it 

took.’”4 Additionally, the trial court found facts present to support a finding that the acts 

amounting to inappropriate marital conduct alleged in Wife’s divorce complaint occurred 

“while both parties resided in Tennessee.” 

In his brief, Husband contends that the acts complained of in Wife’s complaint for 

divorce “could not have occurred in Tennessee because he never moved his residence to 

Tennessee.” As to this argument, we first note that it appears to assume that Husband’s 

residency may obviate the trial court’s jurisdiction over the divorce matter. However, this 

is an incorrect interpretation of the statute. It matters not whether Husband himself “moved 

his residence to Tennessee.”5 Rather, the statute, in relevant part, states that “a divorce 

may be granted for any of the causes referenced in § 36-4-101 if the acts complained of 

were committed while the plaintiff was a bona fide resident of this state.” Tenn. Code 

Ann. § 36-4-104(a) (emphasis added). As we perceive it, Husband’s residence is 

technically irrelevant to this statutory question. Rather, the pertinent inquiry is whether 

Wife was a bona fide resident of this state when the acts complained of in her divorce 

complaint were committed. Indeed, acts giving rise to a divorce may occur in Tennessee 

while one of the parties is not a bona fide resident pursuant to the statute. See Barnett, 

1998 WL 787043, at *2–4 (finding jurisdiction to be proper where the wife was a Florida 

resident, but the husband was a bona fide Tennessee resident and the act complained of in 

the divorce action occurred in Tennessee). Based on the record before us, we find that the 

 

4 To further support its findings, the trial court cited numerous facts evincing Wife’s residence in 

Tennessee, which included that Wife had obtained a Tennessee driver’s license, that Wife had registered

her vehicle in Tennessee, that Wife had found Tennessee employment, and that the children were enrolled

in daycare in Williamson County, Tennessee. Ultimately, the trial court found that “Wife’s principal home 

is now in Tennessee, and she no longer has any connection in Missouri. Wife was a bona fide resident when 

she filed her divorce action.” The trial court also found that Husband “failed to show continued residence 

in Missouri,” that he “changed his license and vehicle registration to Tennessee,” and that he “also sought 

employment in Tennessee” prior to Wife’s filing for divorce. 

5 Regarding Husband’s testimony as to the start of the marital problems and his residency, the trial 

court found him to not be credible. “Where the trial court’s factual conclusions rest on the evaluation of a 

witness’s credibility, we will not re-evaluate that assessment of witness credibility absent clear and 

convincing evidence to the contrary.” Sircy v. Metro. Gov’t of Nashville & Davidson Cty., 182 S.W.3d 815, 

818 (Tenn. Ct. App. 2005) (citing Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)). Here, 

we find no indication of such clear and convincing evidence such as to disturb the trial court’s assessment 

as to Husband’s credibility.
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trial court properly found that Wife was a bona fide resident of Tennessee when the acts 

complained of in her divorce complaint, as previously discussed herein, occurred in 

Tennessee. Therefore, the trial court properly exercised jurisdiction over the parties’ 

divorce pursuant to Tennessee Code Annotated section 36-4-104(a). 

Whether the Trial Court Had Jurisdiction Over the Custody of the Parties’ Minor 

Children 

Husband’s second issue on appeal concerns whether the trial court properly 

exercised jurisdiction over the parties’ minor children such as to make a custody 

determination. 

Before making a determination concerning child custody, a trial court must exercise 

proper jurisdiction. Promulgated in 1997, the Uniform Child Custody Jurisdiction and 

Enforcement Act (“UCCJEA”) “establishes standards for the initial entry of child custody 

determinations that will be entitled to full faith and credit in all fifty states as a matter of 

federal law, specifies the circumstances under which a state court can modify another 

state’s child custody determination, and provides expedited procedures for the enforcement 

of both initial and modified child custody determinations.” State v. McKinnon, 206 S.W.3d 

532, 544 (Tenn. Ct. App. 2006).

Here, the trial court found jurisdiction to be proper under Tennessee’s codified 

version of the UCCJEA. As a general proposition, the statutory scheme initially provides 

as follows as it pertains to a state’s jurisdictional authority to oversee child custody matters: 

(a) Except as otherwise provided in § 36-6-219, a court of this state has 

jurisdiction to make an initial child custody determination only if: 

(1) This state is the home state of the child on the date of the 

commencement of the proceeding, or was the home state of the 

child within six (6) months before the commencement of the 

proceeding and the child is absent from this state but a parent or 

person acting as a parent continues to live in this state[.]

Tenn. Code Ann. § 36-6-216(a)(1). In its holding, the trial court conceded that Tennessee 

was not the home state of the children, and it also found that Missouri was not the home 

state of the children pursuant to Tennessee Code Annotated section 36-6-205(7). Section 

36-6-205(7) provides, in pertinent part, that the “home state” is “the state in which a child 

lived with a parent or a person acting as a parent for at least six (6) consecutive months 

immediately before the commencement of a child custody proceeding.” Tenn. Code Ann. 

§ 36-6-205(7) (emphasis added). The trial court further noted that neither Wife nor 

Husband had a residence in Missouri at the time of the filing of the divorce action, while 

also holding that “no state qualifies” for “home state” jurisdiction under Tennessee Code 
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Annotated section 36-6-216(a)(1).

In light of the above findings and conclusions, the trial court noted that Tennessee 

Code Annotated section 36-6-216(a)(2) provided an “alternate avenue” of jurisdiction. 

Section 36-6-216(a)(2) provides that a Tennessee court may have jurisdiction if:

A court of another state does not have jurisdiction under subdivision (a)(1), 

or a court of the home state of the child has declined to exercise jurisdiction 

on the ground that this state is the more appropriate forum under §§ 36-6-

221 or 36-6-222, and: 

(A) The child and the child’s parents, or the child and at least one (1) 

parent or a person acting as a parent, have a significant connection with this 

state other than mere physical presence; and 

(B) Substantial evidence is available in this state concerning the child’s 

care, protection, training, and personal relationships.

Tenn. Code Ann. § 36-6-216(a)(2) (emphasis added). We conclude that the trial court’s 

recognition of this alternate avenue of jurisdiction was not in error. Indeed, while neither 

Tennessee, nor any state, qualified to exercise jurisdiction under Tennessee Code 

Annotated section 36-6-216(a)(1), we agree, as discussed below, that the record supports a 

finding of both a significant connection with Tennessee, as well as substantial evidence 

concerning the children’s “care, protection, training, and personal relationships,” under 

section 36-6-216(a)(2). 

First, section 36-6-216(a)(2)(A) requires that the children and at least one parent 

have a significant connection with Tennessee, other than a “mere physical presence.” Here, 

the record makes clear that Husband6and Wife, along with the children, relocated to 

Tennessee in May of 2018. Wife and both sets of grandparents reside in Tennessee. Wife 

is employed in Tennessee, has obtained a Tennessee driver’s license, and has also 

registered her car in Tennessee. Husband, despite his contentions, previously resided in 

Tennessee7and, among other things, rented a storage unit in Tennessee to store his 

belongings. As such, the trial court found that there existed a significant connection 

between the children, their parents, and Tennessee. We agree. 

 

6 Despite Husband’s contention that he never resided in Tennessee, nor intended to, the trial court 

found Husband’s testimony concerning his intentions and residence not credible. Moreover, we also note 

that there is no transcript of the hearing on Husband’s motion to dismiss for lack of jurisdiction in the 

appellate record. As such, “we must assume that the record, had it been preserved, would have contained 

sufficient evidence to support the trial court’s factual findings.” Williams v. Williams, 286 S.W.3d 290, 297

(Tenn. Ct. App. 2008) (quoting Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1993)). 

7 As noted earlier, the trial court found that neither Wife nor Husband had a residence in Missouri 

at the time the divorce action was filed. Husband was personally served with process in Williamson County. 
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Second, section 36-6-216(a)(2)(B) requires that there be “substantial evidence”

available in Tennessee concerning the children’s “care, protection, training, and personal 

relationships.” We also find this prong satisfied by the proof available in the record. We 

again note that Wife and both sets of grandparents reside in Tennessee and that both 

children began attending daycare in Tennessee. Indeed, in its order finding jurisdiction 

appropriate, the trial court noted that there existed in Tennessee, “substantial evidence from 

Wife’s employer, both sets of grandparents, and the teachers and daycare workers who care 

for the children concerning the children’s care, protection[,] training, personal 

relationships, and like factors weighing upon the comparative fitness of the parties to be 

awarded custody.” Accordingly, we conclude that there is “substantial evidence,” as 

required by the statute, concerning the “care, protection, training, and personal 

relationships” of the children and that the trial court properly exercised jurisdiction over 

the parties’ children for purposes of determining custody. Although Tennessee was not the 

children’s “home state,” section 36-6-216(a)(2) permits Tennessee jurisdiction under the 

facts found by the trial court in this case. As such, we affirm the trial court on this issue. 

Whether the Trial Court Erred in Finding Husband in Civil Contempt

Husband’s next issue on appeal concerns whether, at the hearing on August 22, 

2019, the trial court erred in finding him in civil contempt. 

Husband and Wife came to an agreement in May 2019, pursuant to which Husband 

was permitted to have one of the parties’ minor children with him in Missouri beginning 

on May 30th until the beginning of school in Williamson County in August.8 Husband 

subsequently notified Wife that he was not going to return the child, as agreed, and was, in 

fact, going to enroll the child in school in Missouri. On August 15, 2019, Wife filed an 

“Ex Parte Request for Temporary Restraining Order, To Set Motion on August 22, 2019, 

and To Order Father to Bring Child to Tennessee on August 22, 2019” (hereinafter referred 

to as “Ex Parte Request”). She also filed a separate motion titled “Motion to Return Child 

to Tennessee and to Mother’s Care” (hereinafter referred to as “Motion to Return Child”). 

On August 16, 2019, the trial court entered an order stating that Husband “is enjoined and 

restrained from enrolling the minor child in any school in Liberty Missouri.” It further 

ordered that Wife’s Motion to Return Child was to be heard on August 22, 2019. 

Additionally, the trial court ordered Husband to return the parties’ minor child to Tennessee 

and to appear, with the child, in court on that date. 

At the hearing on August 22, 2019, Husband appeared without the parties’ minor 

child. Husband told the court he was unaware of the trial court’s August 16th order 

 

8 The record contains no transcript of the hearing from which the court made this finding in its order 

of August 23, 2019. Therefore, “we must assume that the record, had it been preserved, would have 

contained sufficient evidence to support the trial court’s factual findings.” Williams, 286 S.W.3d at 297 

(quoting Sherrod, 849 S.W.2d at 783).
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requiring him to appear with the child in court. Instead, he contended, he was appearing 

for Wife’s previously filed motion that was set for a hearing after the parties’ failed 

mediation.9 However, the trial court concluded that Husband had received proper service 

of the order. Specifically, it found that Wife’s counsel had emailed him a copy of the trial 

court’s order on the same date of filing. Ultimately, the trial court found Husband in 

contempt on two different bases. First, the trial court found Husband in contempt for his

alleged violation of the statutory restraining order outlined in Tennessee Code Annotated 

section 36-4-106. Second, the trial court found Husband in contempt for his failure to bring 

the child before the court as previously ordered. Now on appeal, Husband argues that the 

trial court improperly found him in contempt on both bases. We will address each matter 

separately. 

First, we address the trial court’s finding that Husband was in contempt for his 

failure to bring the parties’ minor child before the court in accordance with the August 16th 

order. Husband contends he had no notice of this order and, thus, it was improper for the 

trial court to hold him in contempt on this basis. Specifically, Husband takes issue with 

the trial court’s finding that he received proper service of its order via email pursuant to 

Rule 5 of the Tennessee Rules of Civil Procedure. 

Although the trial court was not inaccurate in recognizing that email is an available 

method of service under Rule 5, Rule 5.02 specifically provides that service sent via email 

may be effectuated “on any attorney.” Tenn. R. Civ. P. 5.02(2)(a) (emphasis added). Here, 

Husband was without counsel at the time of email, and the attempted service was on him 

directly as a pro se individual, not on an “attorney.” Because Rule 5.02(2)(a) specifically 

provides that email service is proper “on any attorney,” id. (emphasis added), and Rule 5 

does not provide that email service is permitted otherwise, the trial court’s reliance on Rule 

5 was in error. Service on Husband by email was not proper, and the trial court erred in 

finding him in contempt with respect to the August 16th order. 

Next, we address Husband’s contention that the trial court erred when it found that 

he “willfully failed to return the child to Tennessee and that his refusal is a willful violation 

of the statutory restraining order in T.C.A. § 36-4-106.” The court’s order reflects that its

contempt analysis on this subject was in reference to the specific statutory language 

codified at Tennessee Code Annotated section 36-4-106(d)(5), a provision which contains 

an injunction generally “restraining both parties from relocating any children of the parties 

outside the state, or more than fifty (50) miles from the marital home, without the 

permission of the other party or an order of the court.” Tenn. Code Ann. § 36-4-106(d)(5). 

Had the form order attached to Wife’s complaint accurately included this statutory 

language, it would have been proper for the trial court to find Husband in contempt of it. 

 

9 During the summer, the parties had participated in mediation, which was unsuccessful. After the 

mediation failed, Wife filed a motion to set the case for trial. That motion was scheduled to be heard on 

August 22, 2019. 
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Indeed, the trial court found that the parties had an agreement for Husband to have the child 

with him for the summer until the beginning of school but that Husband violated that 

agreement by willfully failing to return the child to Wife’s custody. The problem that exists 

here, however, is that the statutory restraining order language contained in Tennessee Code 

Annotated section 36-4-106(d)(5) was not included in the form order attached to Wife’s 

complaint. The language actually contained in the form order attached to Wife’s complaint 

provided for an injunction which restrained parents from relocating children “without 

permission of the Court or by consent order,” language which is in effect more restrictive 

than that required by the statute.10

The failure to accurately include the statutory provision the trial court found 

Husband to be in contempt of is not without consequence. Indeed, because the provision 

included in section 36-4-106(d)(5) was not attached to the complaint, it was not in effect 

against Husband. The statute is clear on this issue, as it provides that the statutory 

injunctions become an order of the court upon “fulfillment of the requirements” of 

subsection (d), which includes the requirement that the “provisions of these injunctions 

shall be attached to the summons and the complaint.” See Tenn. Code Ann. § 36-4-

106(d)(6) (emphasis added).11 Because the statutory provision relied upon by the trial court 

was not included in the form order attached to the complaint, it was not in effect as an order 

against Husband, and Husband could therefore not be held in contempt of it.12 

In light of the foregoing analysis, we conclude that the trial court erred in holding 

Husband in contempt for violating its August 16th order which had directed that he appear 

with the minor child before the trial court. We further conclude that the trial court erred in 

holding Husband in contempt for violating Tennessee Code Annotated section 36-4-

106(d). We, therefore, reverse the trial court’s findings of contempt.

 

10Although not at issue in the present matter, we note that the form statutory restraining order also 

contained similar more restrictive language in two other provisions contrary to the actual statutory language 

required by section 36-4-106(d).

11 The statute is clear that the provisions of the injunctions in Tennessee Code Annotated section 

36-4-106(d) “shall be” attached to the complaint. Tenn. Code Ann. § 36-4-106(d). Parties are not 

precluded, however, from “applying to the court for further temporary orders, an expanded temporary 

injunction, or modification or revocation of th[e] temporary injunction.” Id.

12 Somewhat confusingly, we observe that the trial court also made findings suggesting that the 

parties’ agreement “had no protection from the statutory restraining order” because it was never reduced to 

writing or entered by the court. Based on our reading of the statutory language in Tennessee Code 

Annotated section 36-4-106(d)(5), the provision invoked by the trial court, there is no requirement that the 

parties must reduce their agreement to writing or that the court formally sanction the relocation. The terms 

of the statutory restraining order that is to be attached to the complaint allow for relocation with “permission 

of the other party.” Tenn. Code Ann. § 36-4-106(d)(5). It is of course possible that the court’s specific 

conclusions on this matter, including the purported need for a writing, were divined not from the actual text 

of the referenced statute, but were instead a product of resorting to the more restrictive language of the 

court’s form attached to the complaint. Assuming this is the case, we note again that certain of the 

injunctive provisions attached to the complaint did not accurately follow the statutory text as required by 

Tennessee Code Annotated section 36-4-106(d). 
- 12 -

Whether the Trial Court Erred in Making an Equitable Distribution of the Parties’ 

Marital Assets

Husband’s next issue on appeal concerns whether the trial court erred in making an 

equitable distribution of the parties’ marital assets after the parties had previously agreed 

upon a division of property prior to trial. 

“The trial court has broad discretion in fashioning an equitable distribution of 

marital property, and an appellate court will defer to the trial court’s distribution unless it 

is inconsistent with the statutory factors or lacks proper evidentiary support.” Trezevant v. 

Trezevant, 568 S.W.3d 595, 607 (Tenn. Ct. App. 2018) (citing Baggett v. Baggett, 422 

S.W.3d 537, 543 (Tenn. Ct. App. 2013)). 

In the present case, the parties came to an agreement prior to trial concerning the 

division of the net proceeds realized from the sale of their Missouri residence as well as 

certain tangible personal property. However, during trial, Wife contended there was an 

inequity in the distribution to be received by the parties. Specifically, Wife contended that 

the vehicle Husband received in the divorce allowed him to leave the marriage with more 

equity. As a result, Wife requested that the trial court grant an “equalizing distribution” in 

order to correct the disparity. Husband and Wife contested the value of Husband’s vehicle, 

with Husband arguing that the vehicle was worth about $26,000.00 and Wife arguing that 

it was worth about $33,338.00. In its order, the trial court accepted Husband’s value of the 

vehicle but noted that there was a disparity in Husband’s favor in the amount of $11,814.00 

in the parties’ respective shares of the marital estate.13 In determining the amount of the 

disparity, the trial court considered the amount of debt Husband still had on the vehicle. In 

order to rectify this disparity, the trial court found that Wife was entitled to receive an 

“equalizing distribution” from Husband in the amount of $5,900.00. 

On appeal, Husband argues that the trial court erred in granting Wife an “equalizing 

distribution.” Specifically, he asserts that the trial court failed to consider the value of 

Wife’s collection of glass marble, which was marital property she received in the divorce. 

Husband contends that the value of Wife’s marble collection is such that it would have 

obviated the need for the “equalizing distribution,” as he claims that Wife’s collection is 

worth between “$25,000 and $30,000.” 

Based upon our review of the record on appeal, we do not find there to be sufficient 

evidence to conclude that the trial court’s grant of the equalizing distribution is reversible 

error. While Husband insists that Wife’s collection of glass marble is worth between 

$25,000.00 and $30,000.00, we find that the proof in the record is uncertain. “The value 

 

13 In this same order, the trial court also found that the value of Wife’s vehicle, deemed to be her 

separate property, was offset by the value of Husband’s separately owned gun collection and his hunting 

and fishing gear. 
- 13 -

of marital property is determined by considering all relevant evidence regarding value and 

the burden is on the parties to produce competent evidence of value.” Powell v. Powell,

124 S.W.3d 100, 104 (Tenn. Ct. App. 2003) (citing Wallace v. Wallace, 733 S.W.2d 102, 

107 (Tenn. Ct. App. 1987)). Here, the only information available as to the value of Wife’s 

collection of glass marble is her testimony, which is admittedly tenuous at best. Wife 

herself is unsure as to whether her own valuation of the collection is accurate and the 

collection has never been appraised. Moreover, Wife testified that she still owes several 

thousands of dollars in credit card debt, of which some is attributable to the marble 

collection. Husband, on the other hand, presented no evidence concerning the value of the 

collection. 

As supported by this Court’s discussion in Powell, the trial court was well within its 

discretion to determine the value of Wife’s collection by considering all the relevant 

evidence regarding the value. Here, it appears that the trial court, in considering Wife’s 

uncertain testimony and the lack of additional evidence, as well as the significant debt 

obligations Wife appeared to have with respect to any purported value, opted to not find 

the collection valuable such as to affect its determination of awarding Wife an equalizing 

distribution. Based upon our review of the record on appeal, we find no error on part of 

the trial court.

Whether the Trial Court Erred in Awarding Wife Attorney’s Fees as Alimony in Solido

Husband’s next issue on appeal concerns whether the trial court erred in awarding 

Wife attorney’s fees as alimony in solido without making a determination concerning the

relevant factors. 

Alimony in solido is alimony that “may be awarded in lieu of or in addition to any 

other alimony award, in order to provide support, including attorney fees, where 

appropriate.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 108 (Tenn. 2011) (quoting Tenn. 

Code Ann. § 36-5-121(d)). Our Supreme Court has stated: 

It is well-settled that an award of attorney’s fees in a divorce case constitutes 

alimony in solido. The decision whether to award attorney’s fees is within 

the sound discretion of the trial court. As with any alimony award, in 

deciding whether to award attorney’s fees as alimony in solido, the trial court 

should consider the factors enumerated in Tennessee Code Annotated section 

36-5-121(i). A spouse with adequate property and income is not entitled to 

an award of alimony to pay attorney’s fees and expenses. Such awards are 

appropriate only when the spouse seeking them lacks sufficient funds to pay 

his or her own legal expenses, or the spouse would be required to deplete his 

or her resources in order to pay them. Thus, where the spouse seeking such 

an award has demonstrated that he or she is financially unable to procure 

counsel, and where the other spouse has the ability to pay, the court may 
- 14 -

properly grant an award of attorney’s fees as alimony. 

Id. at 113 (internal citations omitted). 

In the present matter, the trial court awarded Wife a judgment against Husband for 

attorney’s fees in the amount of $5,369.00 in connection with her successful defense 

against Husband’s challenge to the trial court’s jurisdiction. The trial court predicated its 

award on two independent legal theories. First, it noted that Wife was entitled to recover 

her reasonable attorney’s fees as the prevailing party pursuant to Tennessee Code 

Annotated section 36-6-236. Section 36-6-236 states that,

[t]he court may award the prevailing party, including a state, necessary and 

reasonable expenses incurred by or on behalf of the party, including costs, 

communication expenses, attorney’s fees, investigative fees, expenses for 

witnesses, travel expenses, and child care during the course of the 

proceedings.

Tenn. Code Ann. § 36-6-236. Thus, because Wife was the prevailing party on Husband’s 

challenge to the trial court’s jurisdiction, the trial court determined that she was entitled to 

an award of fees at the trial court’s discretion. The trial court also found that Wife was 

entitled to recover attorney’s fees as alimony in solido “because Husband’s objection to 

this Court’s jurisdiction involved an element of bad faith and dishonesty.” 

In his brief, Husband appeals only the trial court’s grant of attorney’s fees to Wife 

as alimony in solido. His argument does not engage with nor argue against the trial court’s 

award of fees pursuant to section 36-6-236. As such, we find any argument as to the trial 

court’s award of fees to Wife pursuant to section 36-6-236 waived. Moreover, because the 

trial court predicated its award of fees on two independent legal theories and Husband 

challenges only one of those theories, we affirm the award of fees in light of Husband’s 

waiver. 

The trial court also awarded Wife a judgment of $4,575.00, representing her 

attorney’s fees in connection with Husband’s civil contempt. Because we are reversing the 

trial court’s finding of contempt, there cannot be an award of fees in this regard. As such, 

we reverse the trial court’s award of fees to Wife as a result of Husband’s contempt. 

Thus, although we affirm the trial court’s award of fees to Wife in connection with 

Husband’s challenge to the trial court’s jurisdiction, we reverse the award of fees based on 

Husband’s contempt. 

Whether the Trial Court Erred in Failing to Provide Husband an Opportunity to 

Challenge Wife’s Attorney’s Fees
- 15 -

Husband’s final issue on appeal concerns whether the trial court erred in failing to 

provide him with an opportunity to challenge Wife’s attorney’s fees. 

In his brief, Husband argues that the trial court erred by not presenting him an 

opportunity to “review or challenge the award of attorney’s fees on the basis that they were 

not reasonable or necessary,” and he claims the trial court’s decision on the attorney’s fees 

“came immediately at the conclusion of trial . . . [and] he was not afforded an opportunity 

to review the attorney’s fees or to challenge the amount of attorney’s fees.” Specifically, 

Husband contends that the trial court “failed entirely to provide [Husband] an opportunity 

to cross-examine the requesting party’s lawyer regarding his fees or present proof of his 

own.” Rather, Husband asserts, “the [trial court] took the affidavit of [Wife’s] counsel and 

granted exactly the fees requested.” However, as we will explain in further detail below, 

we find Husband’s recitation of the events that are contained in the record to be inconsistent 

at best, and thus, we find his argument in this regard to be without merit. 

In reviewing the transcript of the hearing in the record on appeal, we note that Wife’s 

attorney did in fact introduce an affidavit regarding attorney’s fees as evidence. The court 

then asked Husband whether he objected to the introduction of the affidavit, which he 

stated he did not. Shortly thereafter, Wife’s attorney concluded his examination of Wife, 

thus allowing Husband to cross-examine her. Based on our review of the transcript, we 

find no indication that Husband ever objected to the fees or initiated questioning as to the 

fees although he had the opportunity to do so. Husband asserts that, “[p]arties opposing a 

request for attorney’s fees should be afforded a fair opportunity to cross-examine the 

requesting party’s lawyer or to present proof of its own.” Indeed, “[t]rial courts may act 

upon requests for legal expenses without a fully developed record as long as the party 

opposing the request has been afforded a fair opportunity to cross-examine the requesting 

parties’ witnesses and to present proof of its own on the issues.” Sherrod v. Wix, 849 

S.W.2d 780, 785 (Tenn. Ct. App. 1992) (citing Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 

1988); Wilson Mgmt. Co. v. Star Distribs. Co., 745 S.W.2d 870, 873 (Tenn. 1988)). 

However, the issue with Husband’s argument is that he never acted nor objected to the 

entry of the affidavit for attorney’s fees as an exhibit. Moreover, Husband fails to point to 

any part in the hearing during which the trial court prevented him from questioning the 

veracity of Wife’s attorney’s fees. In Sherrod, the husband took issue with the trial court’s 

awarding the wife attorney’s fees because he had not “been able to accurately determine 

the amount of attorney fees incurred by [wife].” Id. at 784. There, the trial court held a 

hearing on the issue of attorney’s fees where wife’s attorney testified as to his hourly rate 

and submitted an affidavit showing fees incurred by wife pursuant to the litigation. Id. The 

trial court ultimately entered an order directing husband to pay wife’s attorney’s fees. Id. 

On appeal, this Court found the husband “did not object to the procedure used by the trial 

court to determine the amount of the attorney’s fees award and did not insist on crossexamining [the wife’s] lawyer or offering proof of his own.” Id. at 785. Therefore, we

found the trial court’s award proper. Id. Similarly here, we note that Wife’s attorney 

conducted a brief questioning of Wife upon entering an affidavit of attorney’s fees as an 
- 16 -

exhibit. Upon doing so, the trial court asked Husband if he had any objection to the entry 

of the affidavit as an exhibit, to which Husband replied in the negative. Although we note 

that Husband was proceeding pro se during the hearing, “courts must not excuse pro se 

litigants from complying with the same substantive and procedural rules that represented 

parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. 

App. 2003) (citing Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App. 1996); 

Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4 (Tenn. Ct. App. 1995)). As such, here, 

Husband chose to represent himself at the divorce proceedings and thus was charged with 

the responsibility of questioning witnesses and cross-examining witnesses. Despite his 

status as a pro se defendant, we decline to find any error on the part of the trial court. Much 

like in Sherrod, Husband in this case did not object to the affidavit, nor did he insist on 

cross-examining Wife’s attorney. “Our rules do not require that ‘relief be granted to a 

party responsible for an error or who failed to take whatever action was reasonably 

available to prevent or nullify the harmful effect of an error.’” Bowers v. Bowers, No. 

M2010-00311-COA-R3-CV, 2011 WL 1344258, at *6 (Tenn. Ct. App. Apr. 7, 2011) 

(quoting Tenn. R App. P. 36(a)). Accordingly, we reject Husband’s contention that he was 

denied the opportunity to cross-examine witnesses or present proof of his own regarding 

Wife’s attorney’s fees. 

Whether Wife is Entitled to Her Attorney’s Fees on Appeal

Wife’s sole issue for appeal concerns whether she is entitled to her attorney’s fees 

on appeal. Specifically, she contends that Husband has simply reiterated identical 

arguments he made before the trial court and waived some of the same issues he now 

challenges before this Court. 

“Whether to award attorney’s fees on appeal is a matter within the sole discretion 

of this Court.” Luplow v. Luplow, 450 S.W.3d 105, 119 (Tenn. Ct. App. 2014). In 

determining whether to award a party attorney’s fees on appeal, “we consider the ability of 

the requesting party to pay the accrued fees, the requesting party’s success in the appeal, 

whether the requesting party sought the appeal in good faith, and any other equitable factor 

that should be considered.” Ellis v. Ellis, 621 S.W.3d 700, 709 (Tenn. Ct. App. 2019). 

Exercising our discretion, and in light of our decision herein, we decline to award Wife her 

attorney’s fees on appeal. 

CONCLUSION

In light of the foregoing, we affirm in part and reverse in part. 

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE