### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE March 10, 2015 Session

ANDREW R. LUNN, DDS v. CAROLE MICHELLE LUNN

Appeal from the Chancery Court for Hamilton County

No. 11

- 0240 Jeffrey M. Atherton
, Chancellor

No. E2014

- 00865

- COA

- R3

- CV

- FILED

- JUNE 29, 2015

Th e appeal in this divorce litigation presents issues regarding proper valuation of the parties‟ business

, proper di visio n of marital assets, alimony, child support, attorney ‟ s fees, and court costs. The parties were married for seventeen years, with three children being born of the marriage. The husband is a dentist, who started his own practice during the parties‟ marriage. Much of the testimony at trial focused upon the p roper value to be assigned to this marital asset. The trial court adopted the value assigned by the wife‟s expert of $430,376. The trial court then ordered that all of the marital assets be divided equally between the parties. Further, the trial court a warded Wife rehabilitative alimony, transitional alimony, and alimony in solido

. The h usband has appealed the trial court‟s

final judgment. W e reverse the trial court‟s valuation of the dental practice, and we

remand this matter to the trial court for a proper determination of the value of such asset. The trial court will also be required to redistribute the parties‟ marital assets as necessary,

in accordance with its redetermined valuation of this asset, in order to effectuate the trial
court‟s decision to make an equal division of marital property between the parties. We modify the trial court‟s award of transitional alimony to an award of alimony in futuro

. We also remand, for the trial court‟s determination, the issue of a reasonable award of

attorn ey ‟ s fees to Wife incurred in defending this appeal. We affirm the trial court‟s judgment in all other respects.

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

Affirmed in Part, Reversed in Part ; Case Remanded

T HOMAS R. F RIERSON

, II, J. , delivered the opinion of the court, in which C HARLES D.

S USANO

, J R

., C.J., joined. D. M ICHAEL S WINEY

, J. , filed a separate concurring and dissenting opinion.

John P. Konvalinka and Katherine H. Lentz

, Chattanooga , Tennessee, for the appellant, Andrew R. Lunn, DDS.2

Harold L. North, Jr., and Nathaniel S. Goggans

, Chattanooga , Tennessee, for the appellee, Carole Michelle Lunn.

OPINION

I. Factual and Procedural Background

Andrew R. Lunn, DDS (“Husband”), filed this divorce action against Carole Michelle Lunn (“Wife”)

, on April 4, 2011. The parties married on June 17, 1995, and separated on February 13, 2011. The y ar e the parents of three children

, who were ages

fif teen , thirteen, and eleven at the time of trial. Husband is a dentist who operates a practice in Chattanoo ga as a sole proprietor. Wife w as a registered nurse but has worked primarily as a homemaker since the birth of the parties‟ first child in 1996. Wife has, however, been employed on a part

- time basis as office manager for Husband ‟s dental practice.

Husband and Wife married immediately following Husband‟s graduation from dental school. The parties‟ first child, a daughter, was born approximately eighte en months later. The parties‟ sons were born in 1999 and 2001 , respectively . Before the

birth of the ir daughter, Wife had been employed as a staff development instructor for the University of Mississippi Medical Center. The par ents agreed that Wife would be a homemaker following the births of the parties‟ children

. Wife did not maintain her nursing certification thereafter. Wife was primarily tasked with the caregiving responsibilities for the children and management of the househ old while Husband was the primary wage earner.

In 2009, Husband became involved in an extra

- marital relationship with his dental assistant. Wife discovered this relationship in October 2010. Following months of marital counseling, the parties separat ed in February 2011, with Husband renting an apartment and Wife and the children remaining in the marital residence. As Husband maintained payment of the marital responsibilities pending the parties‟ divorce , he provided Wife a weekly allowance of $600 fo r food and gas expenses

.

During the pendency of this action, Husband sought permission from the trial court to obtain a loan of $60,000, which he claimed would enable him to improve the parties‟ financial situation and resolve other liabilities. Husba nd asserted that the recent “economic downturn” had negatively impacted his business. The trial court granted Husband‟s request. The trial court later found Husband to be in contempt for withdrawing funds from the parties‟ line of credit with out the appr oval of Wife or the

court.3

A trial of this matter was conducted over several non

- consecutive days, spann ing

June 26

- 29 , 2012, and July 3, 2012. Numerous witnesses testified in addition to the parties, including the children, other family members and fri ends, and valuation experts

for both sides. After the parties rested, the trial court scheduled a hearing for July 6, 2012, to consider closing arguments. On July 5, 2012, Wife filed a motion seeking to reopen the proof for the limited purpose of clarify ing her testimony regarding her parents‟ payment of her expert witness and attorney ‟ s fees. During the scheduled hearing on July 6, 2012, the trial court granted the motion, stating that limited supplementation

could be presented by both parties. The trial court also announced that due to concerns regarding the children‟s best interest and implementation of an appropriate permanent parenting plan, the court was, sua sponte

, appointing counsel Robin Miller as the children‟s guardi an ad litem

. The court directed Ms. Miller to prepare a report addressing

the respective issues.

The trial court conducted a subsequent hearing on July 27, 2012, wherein Wife was allowed ten minutes to present additional proof

, and Husband was afforded twenty minutes. Following its receipt of the report from the guardian ad litem , the trial court issued a memorandum opinion on November 26, 2012. Concerning grounds, t he trial
court found that Husband‟s extra

- marital relationship resulted in the destruct ion of the marriage and accordingly award ed a divorce to Wife.

Regarding the parties‟ real property, the trial court determined that the marital residence, the parties‟ lake lot, and the commercial building housing Husband‟s dental practice were all ma rital property. As t he trial court noted

, the marital residence had been sold at a loss and the lake lot was being marketed for sale. The trial court ordered that the deficiency from the sale of the marital residence be paid from the proceeds of the sale of

the lake lot. Any proceeds remaining were ordered to be equally divided between the parties. By agreement, the parties valued t he commercial property , upon which Husband‟s dental practice was located

, at $620,000. The trial court determined that the undisputed amount of debt c on cerning this commercial property was $435,757, resulting in an equity value of $184,242.

The trial court noted in its memorandum opinion that the parties had previously divided their personalty . T he parties conceded that all of their bank accounts were

marital property

. In connection therewith, t he trial court found that although there

e xisted some variations in the values listed for the bank accounts, Husband‟s values were
more accurate because Husband‟s amended asset an d liability statement had been filed most recently. The court also adopted values for the parties‟ automobiles.

The trial court next discussed at length the proper valuation of Husband‟s dental practice. On this issue, t he court noted that the practice was undisputedly marital4

property and that Wife had contributed to the value of same both as an office manager and a homemaker. The court specified that Tennessee law precluded the distribution upon divorce of personal goodwill as a component of the busi ness‟s value. Therefore, the court determined that it would adopt the valuation of Wife‟s expert regarding the business minus any amount attributable to personal goodwill. The court further found that Husband‟s expert “grossly undervalued” the practice. The court concluded that the

resultant value determined by Wife‟s expert, once personal goodwill was deducted, comported closely with a value Husband had placed on the practice on a 2005 financial statement. Having valued all of the parties‟ real and per sonal property, the court

fashioned a near ly equal d ivisio n.

Regarding spousal support , the trial court determined that the applicable statutory
factors weighed in favor of an award of alimony to Wife. Having found that Wife need ed

time to re

- establish her career, the court award ed her rehabilitative alimony for three

years. Having also determined that Wife would not be able to ear n an income comparable to that of Husband, the court award ed her transitional alimony in progressively decreasing amount s for sixteen years, the approximate duration of the parties‟ marriage. The court further awarded Wife alimony in solido to pay her attorney‟s fees

.

Concerning co

- parenting responsibilities, t he trial court determined that Wife was the appropriate primary residential parent for the children

. The court accordingly entered

a permanent parenting plan that allowed the children time to transition to a greater

amount of co

- parenting time with Husband following family counseling

. C hild s upport
was calculated based on Husband‟s income level of $411,457 per year, which the court gleaned from the parties‟ 2011 federal income tax return.

Both parties respectively filed m otions to alter or amend the judgment. The trial

court entered a sub sequent order

, allowing Husband to satisfy a portion of his obligations owed to Wife by transferring funds from his retirement account via a Qualified Domestic

Relations Order (“QDRO”) . Husband was directed to reimburse Wife for any tax liability she incurred as a result of such transfer. The court also ordered Husband to pay $5,000 of Wife‟s expert witness fees. The court denied Wife‟s request to base Husband‟s child support obligation on the actual co

- parenting time he was currently spending with

the children

.

The trial court referred i ssues regarding the proper amount of an award of attorney‟s fees to Wife to the clerk and master, who conducted a hearing and issued a report finding that such fees should be set at $ 180,026. The court approved and adopted the master‟s report, with the exception of finding an additional $5,976 in fees and expenses inadvertently omitted from the report. The court thus increased the total5

attorney‟s fees awarded in favor of Wife to $18 6,003. The court subsequently entered a supplemental award of $21,295.

Husband timely appealed . Thereafter, Wife filed a motion seeking reimbursement

for th e additional taxes she incurred resulting from the transfer of funds Husband made to

her from hi s retirement account. Husband objected to this motion, arguing that jurisdiction resided with this Court. This Court allowed a limited remand so that the trial

court could resolve th e issue. Upon remand, t he trial court found that Wife ‟s tax liability

h ad increased by $16,022 due to the transfer of funds by QDRO . The court thus ordered Husband to pay this amount, finding that the additional tax liability was due to Husband‟s decision to use retirement funds to pay his obligations to Wife

.

II. Issues Presented

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

1. Whether the trial court erred in its valuation of Husband‟s dental practice.

2. Whether the trial court erred in the type, duration, and amount of alimony

awa rded to Wife.

3. Whether the trial court erred by reopening the proof to allow additional testimony by the parties.

4. Whether the trial court erred by assessing the guardian ad litem ’s fees to
Husband.

5. Whether the trial court erred in allocating Wife‟s 2013 additional tax liability

to Husband.

Wife presents the following additional issues for review:

6. Whether the trial court erred in declining to award Wife the entire amount of her expert witness fees and expenses.

7. Whether the trial court erred in failing to determine Husband‟s child support obligation based on his actual co

- parenting time.

8. Whether Wife should be awarded her attorney ‟ s fees with regard to this appeal.6 III. Standard of Review

The value of marital property is a fact question, and a trial court‟s decision with regard to the value of a marital asset should be given great weight on appeal. See
Wallace v. Wallace , 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). A trial court‟s decision with regard to the valuation of a marital asset will be presumed to be correct unless the evidence preponderates otherwise. Id . The trial court should determine the value of a marital asset by considering all relevant evidence regarding value, and the p arties are bound by the evidence they present. Id . The trial court, in its discretion, is free to place a value on a marital asset that is within the range of the evidence submitted. Id

.

Regarding alimony, our Supreme Court has “repeatedly and recentl y observ[ed] that trial courts have broad discretion to determine whether spousal support is needed and, if so, the nature, amount, and duration of the award.” See Gonsewski v. Gonsewski

, 350 S.W.3d 99, 105 (Tenn. 2011). The Court has further explained:

a trial court‟s decision regarding spousal support is factually driven and involves the careful balancing of many factors. As a result, “[a]ppellate courts are generally disinclined to second

- guess a trial judge‟s spousal support decision.” Kinard , 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in reviewing an award of spousal support is to determine whether the trial court applied the correct legal standard and reached a decision that is not clearly unreasonable.” Broadbent v. Broadbent

, 211 S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second

- guess a trial court‟s decision absent an abuse of discretion. An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice. This standard does not permit an appellate court to substitute its judgment for that of the trial court, but “„reflect s an awareness that the decision being reviewed involved a choice among several acceptable alternatives,‟ and thus „envisions a less rigorous review of the lower court‟s

decision and a decreased likelihood that the decision will be reversed on appeal.‟” H

enderson , 318 S.W.3d at 335 (quoting Lee Medical, Inc. v.

Beecher , 312 S.W.3d 515, 524 (Tenn. 2010)). Consequently, when reviewing a discretionary decision by the trial court, such as an alimony determination, the appellate court should presume that the d ecision is correct and should review the evidence in the light most favorable to the

decision.

Id . at 105

- 06 (other internal citations omitted).7

Our Supreme Court has described the proper standard of review for child support

determinations as follows:

P rior to the adoption of the Child Support Guidelines, trial courts had wide discretion in matters relating to child custody and support. Hopkins v. Hopkins , 152 S.W.3d 447, 452 (Tenn. 2004) (Barker, J., dissenting). Their discretion was guided only by bro ad equitable principles

and rules which took into consideration the condition and means of each
parent. Brooks v. Brooks , 166 Tenn. 255, 257, 61 S.W.2d 654, 654 (1933). However, the adoption of the Child Support Gu idelines has limited the

courts‟ discreti on substantially, and decisions regarding child support must be made within the strictures of the Child Support Guidelines. Berryhill v.

Rhodes , 21 S.W.3d 188, 193 (Tenn. 2000); Jones v. Jones , 930 S.W.2d 541, 545 (Tenn. 1996); Smith v. Smith , 165 S.W.3d 279, 282 (Tenn. Ct. App. 2004).

* * *

Because child support decisions retain an element of discretion, we review them using the deferential “abuse of discretion” standard. This

standard is a review

- constraining standard of review that calls for less intense appellate review and, therefore, less likelihood that the trial court‟ s decision will be reversed. State ex rel. Jones v. Looper , 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000 ); White v. Vanderbilt Univ ., 21 S.W.3d 215, 222

- 23 (Tenn. Ct. App. 1999). Appellate courts do not have the latitude to

substitute their discretion for that of the trial court. Henry v. Goins , 104 S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaa trude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). Thus, a trial court‟ s discretionary decision will be upheld as long as it is not clearly unreasonable, Bogan v. Bogan , 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can disagree about its correctnes s. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001); State v. Scott , 33 S.W.3d 746, 752 (Tenn. 2000). Discretionary decisions must, however, take the applicable law and the

relevant facts into account. Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn.

199 6). Accordingly, a trial court will be found to have “abused its discretion” when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining
party. Perry v. Perry , 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v.

Blackwood , 46 S.W.3d 177, 182 (Tenn. 2001); Overstreet v. Shoney’s, Inc.

, 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999).8

Richardson v. Spanos , 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005)

.

IV. Valu ation of Dental Practice

Husband asserts that the trial court erred in its valuation of the dental practice. Both parties presented expert testimony at trial regarding this issue. Husband ‟s expert

, Brent A. McDade, valued the dental practice at $52,000. Mr. McDade stated that, based on his understanding of Tennessee law, the valuation should only be established on the value of the net tangible assets, giving no consideration for the value of personal

goo dwill. Wife ‟s expert , Robert Vance, valued the dental practice at $430,376

, excluding any consideration of personal goodwill , which he specifically valued at $209,624

. Mr. Vance‟s evaluation did, however, include “enterprise” goodwill of $277,090. The t rial court adopted the $430,376 value presented by Mr. Vance , based in part on the fact that

Husband had similarly valued th e practice assets at $450,000 on a 2005 financial statement he had prepared and presented when applying for a loan.

Husband conten ds that the trial court erred in adopting Wife ‟s expert‟s value because it included “enterprise” goodwill. Regarding the business valuation, the trial court stated in pertinent part:

As discussed previously, according to McKee and other Tennessee case law, the Court cannot include the added value for personal goodwill in its valuation of the dental practice for the purpose of dividing marital property. Although Defendant, by analogy and through the testimony of Mr. Vance, asse rted that Plaintiff‟s work in Memphis illustrates that any dentist could step into Plaintiff‟s practice, thus the personal goodwill relating to Plaintiff‟s Chattanooga practice should be considered, the Court does not find the argument or testimony persuas ive. To the contrary, the Court notes the continuing concern noted in Smith v. Smith : “There is a disturbing inequity in compelling a professional practitioner to pay a spouse a share of intangible assets of a judicially determined value that could not

b e realized by a sale or another method of liquidating value.” 709 S.W.2d 588, 592 (Tenn. Ct. App. 1985) (quoting Holbrook v. Holbrook , 309 N.W.2d 343, 354 (Wis. Ct. App. 1981)). Thus, discounting the $209,624 of personal goodwill, Mr. Vance values the co mpany at $430,376, which includes enterprise goodwill and the total assets and equipment values of the company minus the total liabilities. Tr. Ex. 5, p. 23. While Mr. Vance‟s evaluation seems somewhat optimistic, the Plaintiff‟s expert evaluation of $52 ,000 conversely seems to grossly undervalue the company: a valuation of the business that does not account for the9

enterprise goodwill that results from building a successful operation for eight years, especially when the business has been posting its bes t profits in the most recent years, seems unreasonable. See Eberting v. Eberting , No.

E2010

- 02471

- COA

- R3

- CV, 2012 WL 605512, *19 (Tenn. Ct. App. Feb. 27, 2012) (including the specialized equipment, original purchase price of the business, and increased re venues over the years in calculating the reasonable valuation of husband‟s orthodontic practice).

Mr. Vance‟s valuation is not without its problems either. The Court notes the discrepancies in valuation of the dental practice‟s hard assets

between the t wo reports, partic ularly the equipment, which Mr. Vance has given greater life

- expectancy resulting in their higher value in his report. Compare Tr. Ex. 2, Table 1 (valuing the equipment at $111,039) with Tr. Ex. 5, p.23 (valuing equipment at $226,000). However, the Court finds that Mr. Vance‟s $430,376 estimate of the value of the dental practice comports more closely with the Plaintiff‟s own admission that the dental practice had a value of $450,000 on an April 5, 2005 financial statement submitted for the purposes of obtaining a loan. See Tr. Ex. 1. Accordingly, the Court adopts Mr. Vance‟s accounting of the total equity value of the dental practice‟s hard assets and enterprise goodwill, less the value of “personal goodwill,” as $430,376.00.

As the t rial court properly recognized, t his Court has repeatedly held that professional goodwill in a sole proprietorship is an intangible asset that is not divisible as marital property upon divorce because it is personal to the proprietor

. See , e.g., Hartline v. Hartline, No. E2012

- 02593

- COA

- R3

- CV, 2014 WL 103801 at *13 (Tenn. Ct. App. Jan. 13, 2014); Eberting v. Eberting , No. E2010

- 02471

- COA

- R3

- CV, 2012 WL 605512 at *19 (Tenn. Ct. App. Feb. 27, 2012). Although the courts of our state have recognized

the exist ence of “ enterprise ” or “business” goodwill as a distinct concept from professional or personal goodwill, see, e.g., McKee v. McKee , No. M2009

- 01502

- COA

R3

- CV, 2010 WL 3245246 at * 3 (Tenn. Ct. App. Aug. 17, 2010) and York v. York , No.

01

- A

- 01

- 9104

- CV

- 00131, 1992 WL 181710 at *3 (Tenn. Ct. App. July 31, 1992)

, this Court has been reluctant to allow enterprise goodwill to be divided as a marital asset upon divorce when the business involved is a sole proprietorship, as here. See Hartline,

2014 WL 103801 at *13

. As we explained in Hartline :

[Wife‟s expert‟s] testimony illustrates the fine line previously noted by this Court between the personal goodwill of a practitioner and the

busi ness goodwill of a practitioner‟ s business, complete with staff, equipment, and a location that could be assumed by another practitioner.

See Smith , 709 S.W.2d at 592

- 93. In holding that goodwill of a sole10

practitioner should not be considered for purposes of property distribution

in a divorce action, this Court has noted that the “„concept of professional good will evanesces when one attempts to distinguish it from future earning capacity.‟” ( Id . at 591) (quoting Holbrook v. Holbrook , 309 N.W.2d 343 (Wis. Ct. App. 1981)).

[Wife‟s expert] was clearly distinguishing between Husband ‟ s personal goodwill in the community and the goodwill his practice would continue to enjoy with a different practitioner in terms of equipment, staff, location, and established patients. This Cour t has previously determined that such a distinction may be considered in including business goodwill for valuation where the practitioner has one or more partners or pre

- established contracts that could be assumed by another practitioner. See, e.g. York v

. York , No. 01

- A

- 01

- 9104

- CV00131 , 1992 WL 181710 (Tenn. Ct. App. July 31, 1992) (concluding that as opposed to cases such as Smith , in w hich “the professional practice‟ s value as a going concern and its business reputation were inseparable from the profess ional reputation of the practitioners,”

“ „net asset value‟ principles do not apply to incorporated professional practices that do not depend solely on the professional reputation of the practitioner.”). However, in a case such as the one at bar, wherein H usband is the sole practitioner of an unincorporated dental practice, whether his business could continue without him is speculative, leading to the

conclusi on that the goodwill of Husband‟ s practice should not be considered in valuing said practice. See Smith , 709 S.W.2d at 592. We

therefo re must reverse the trial court‟s valuation of Husband‟ s dental practice and remand for valuation without consideration of goodwill, regardless of whether that goodwill is associated personally with Husband

or with his practice

.

Hartline , 2014 WL 103801 at * 13 (emphasis added)

. Based on this precedent, we determine that the adoption of a valuation that expressly included enterprise goodwill was erroneous because the business involved was a sole proprietorship.

We rec ognize the trial court‟s stated reliance on Eberting , wherein this Court explained that the value of a sole proprietorship may be based on other evidence a part from the expert valuations, such as the business‟s previous purchase price, the business ‟s

locat ion in a state

- of

- the

- art facility, increasing revenues for the business , and the value assigned to the business by its owner on a financial statement. See 2012 WL 605512 at

*19. The trial court herein thus relied upon Husband‟s “own admission that the d ental practice had a value of $450,000 on an April 5, 2005 financial statement submitted for the purposes of obtaining a loan.” A review of this financial statement , however, reveals11

that although Husband did list $450,000 in assets for the practice, he a lso listed a debt against the dental equipment of $240,000, which would result in a net value of $210,000. Therefore, Husband‟s total value listed on the 20 05 financial statement does not, in fact, comport with Mr. Vance‟s total value, including enterpris e goodwill, of $430,376.

Find ing no other evidence in the record that supports the $430,376 value found by the trial court, we must reverse the trial court‟s determination regarding this issue and

remand for the trial court to determine the value of the dental practice without consideration of professional or enterprise goodwill. See Hartline , 2014 WL 103801 at

* 13. The trial court‟s modification of the value of this asset will clearl y affect the overall equitable di visi on of the marital estate. Theref ore, we remand that issue to the trial court

for determination as well.

V. Spousal Support

Husband asserts that the trial court erred in the type, duration, and amount of spousal support awarded to Wife. The trial court awarded Wife rehabilitative alimony in

the amount of $3,600 per month for three years, for the stated purpose of enabling Wife to fulfill her continuing education goal s and regain her nursing license. The court also

awar ded Wife transitional alimony of $6,451 per month until March 2013, $2,288 per month until May 2021, and $500 per month until May 2029. Wife further received an award of alimony in solido in the amount of $207,295 to defray her attorney ‟ s fees. We

will a ddress each of the issues concerning spousal support in turn.

A. Type and Duration of Alimony

Husband contends that the award of transitional alimony was erroneous because transitional alimony , which has been defined as “short

- term support,” should not h ave been awarded for a period in excess of sixteen years. Our statutory scheme regarding awards of alimony, provided in Tennessee Code Annotated § 36

- 5

- 121 (2014)

, state s in pertinent part:

(c)(1) Spouses have traditionally strengthened the family unit through private arrangements whereby one (1) spouse focuses on nurturing the personal side of the marriage, including the care and nurturing of the children, while the other spouse focuses prim arily on building the economic strength of the family unit. This arrangement often results in economic detriment to the spou se who subordinated such spouse‟ s own personal career for the benefit of the marriage. It is the public policy of this state to

en courage and support marriage, and to encourage family arrangements that12

provide for the rearing of healthy and productive children who will become healthy and productive citizens of our state.

(2) The general assembly finds that the contributions to the m arriage as homemaker or parent are of equal dignity and importance as economic contributions to the marriage. Further, where one (1) spouse suffers economic detriment for the benefit of the marriage, the general assembly

finds that the ec onomically disadv antaged spouse‟ s standard of living after the divorce should be reasonably comparable to the standard of living enjoyed during the marriage or to the post

- divorce standard of living expected to be available to the other spouse, considering the relevant

sta tutory factors and the equities between the parties.

(d)(1) The court may award rehabilitative alimony, alimony in futuro, also known as periodic alimony, transitional alimony, or alimony in solido, also known as lump sum alimony or a combination of these , as provided in this subsection (d).

(2) It is the intent of the general assembly that a spouse, who is economically disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by the granting of an order for payment of rehabilitativ e alimony.

. . .

(3) Where there is relative economic disadvantage and rehabilitation is not feasible, in consideration of all relevant factors, including those set out in subsection (i), the court may grant an order for payment of support and

maintenance on a long

- term basis or until death or remarriage of the recipient, except as otherwise provided in subdivision (f)(2)(B).

(4) An award of alimony in futuro may be made, either in addition to an award of rehabilitative alimony, where a spouse may be only partially rehabilitated, or instead of an award of rehabilitative alimony, where

rehabilitation is not feasible. Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs as sistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection.13

(5) Alimony in solido may be awarded in lieu of or in addition to any o ther alimony award, in order to provide support, including attorney fees, where appropriate.

(e)(1) Rehabilitative alimony is a separate class of spousal support, as distinguished from alimony in solido, alimony in futuro, and transitional alimony. To be rehabilitated means to achieve, with reasonable effort, an earning capacity that will permit the ec onomically disadvantaged spouse‟ s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post

- divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

* * *

(f)(1) Alimony in futuro, also known as periodic alimony, is a payment of
support and maintenance on a long term basis or until death or remarriage of the recipient. Such alimony may be awarded when the court finds that there is relative economic disadvantage and that rehabilitation is not

feasible

. . . .

* * *

(g)(1) Transitional alimony means a sum of money payable by one (1) party to, or on behalf of, the other party for a determinate period of time. Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spous e needs assistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection.

* * *

(h)(1) Alimony in solido, also known as lump sum alimony, is a form of long term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony. Alimony in solido may be paid in installments; provided, that the payments

are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. The purpose of this form of alimony is to provide financial support to a spouse. In addition, alimony in solido may include attorney fees, where appropriate

.14

* * *

(i) In determining whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, inc luding:

(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other

sources;

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

abil ity and opportunity of each party to secure such education and training, and the necessity of a party to secure further

education and training to improve such party‟ s earnings capacity to a reasonable level;

(3) The duration of the marriage;

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

(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek empl oyment outside the home, because such party will be custodian of a minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and intangible;

(8) The provisions made with regard to the marital property,

as define d in § 36

- 4

- 121;

(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and15 homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Further, regarding transitional alimony, our Supreme Court has explained:

The fourth category of support, transitional alimony, is appropriate when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce. Simply put, this type of alimony “aid[s] the person in the transition to the status of a single person.” Mills v.

Mills , No. M2009

- 02474

- COA

- R3

- CV, 2010 WL 3059170, at *5 (Tenn. Ct. App. Aug. 4, 2010); see also Montgomery v. Silberman , No. M2009

- 00853

- CO A

- R3

- CV, 2009 WL 4113669, at *2 (Tenn. Ct. App. Nov. 24, 2009) (affirming trial court‟s award of transitional alimony to wife “to bridge the gap, so to speak, between her married life and single life”); Engesser v. Engesser , 42 So.3d 249, 251 (Fla. Dist. C t. App. 2010) (en banc) (describing transitional alimony as “[b]ridge

- the

- gap alimony” designed to “smooth the transition of a spouse from married to single life”). In contrast to rehabilitative alimony, which is designed to increase an economically disad vantaged spouse‟s capacity for self

- sufficiency, transitional alimony is designed to aid a spouse who already possesses the capacity for self

- sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaini ng a household without the benefit of the other spouse‟s income. As such, transitional alimony is a form of short

- term support

.

Gonsewski , 350 S.W.3d at 109 (other internal citations omitted) (emphasis added).

Husband argues that sixteen

- plus years of transitional alimony exceed the i ntended

purpose of “short

- term support.”

Following our thorough review of this issue, we agree with Husband. We recognize that the statute concerning alimony, detailed above, reflect s a legislative preference favoring an award of rehabilitative or transitional alimony rather than alimony16

in futuro or in solido

. See Tenn. Code Ann. § 36

- 5

- 121(d)(2)

- (3); Gonsewski , 350

S.W.3d at 109. In p revious cases where the award of transitional alimony was questioned , however, this Court has affirmed an award of transitional alimony for a period of eight years at most. See , e.g., Miller v. McFarland , No. M2013

- 00381

- COA

R3

- CV, 2014 WL 2194382 at *8 (Tenn. Ct. App. May 23, 2014) (holding that a period of eight years is not an unreas onable duration for an award of transitional alimony); Kelly v. Kelly , No. E2012

- 02219

- COA

- R3

- CV, 2013 WL 4007832 at *12 (Tenn. Ct. App. Aug. 6, 2013), rev’d in part 445 S.W.3d 685 (Tenn. 2014) (modifying award to transitional alimony of eight years‟ durat ion); Hatfield v. Hatfield , No. M2012

- 00358

- COA

- R3

- CV, 2013 WL 493305 at *6 (Tenn. Ct. App. Feb. 7, 2013) (affirming award of alimony of $1,200.00 per month for five years, but modifying the designation of such alimony from alimony in futuro to transitiona l alimony); Ghorashi

– Bajestani v. Bajestani , No. E2009

- 01585

- COA

- R3

- CV, 2010 WL 3323743 at *15 (Tenn. Ct. App. Aug. 24, 2010) (modifying nine

- year transitional alimony award to period of six years, given that the parties were married only eight years); Pearson v. Pearson , No. E2007

- 02154

- COA

- R3

- CV, 2008 WL 4735305 at *13 (Tenn. Ct. App. Oct. 27, 2008) (affirming award of alimony of $1,500.00 per month for six years, but modifying the designation of such alimony from rehabilitative alimony to transitional alimony ).

We also note that the above statutory provisions expressly provide that “[t] ransitional alimony is awarded when the court finds that rehabilitation is not

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

ec onomic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection. ” Tenn. Code Ann. § 36

- 5

- 121(d)(4) (emphasis added) . Alimony in futuro , by contrast, may be awarded in addition to an award of rehabilitative alimony, “where a spouse may be only partially
rehabilitated.” Id

.

In this case, the trial court found that Wife could be rehabilitated to some degree if she completed her continuing education hours and regained her nursing license. The trial court found that Wife would likely be able to obtain employment as a registered nurse and thus improve her earning capacity, with reasonable effort, in approximately three

years. Neither party disputes that some level of rehabilitation is feasible for Wife, and

t he evidence supports th e trial court‟s finding in this regard . The tri al court also found, however, that it would be unlikely for Wife, after returning to work, to be able to earn an income “anywhere close to” Husband‟s income. Because Wife‟s earning capacity would not be comparable to Husband‟s

, the trial court awarded tra nsitional alimony for a period in excess of sixteen years.

We agree with the trial court that it would be improbable for Wife to be able to earn an income equivalent to or even approaching that of Husband once she has17

rehabilitated herself and returned to the workforce. The evidence demonstrated that Husband earned in excess of $400,000 in the year prior to trial, similarly earning approximately $300,000 to $400,000 annually in recent years. 1 Assuming that Wife is able to regain her nursing license and o btain employment, the evidence established that

t he annual mean wage for a registered nurse in the Chattanooga area i n 2011 was $57,490. Therefore, a considerable disparity of income between the parties would clearly exist notwithstanding Wife‟s contempla ted partial rehabilitation.

Following our thorough review of the record, we conclude that the trial court did not err in its consideration of the statutory factors listed above and its determination that

Wife was entitled to an award of alimony beyond the period of her rehabilitation. As the trial court found, factors 1, 2, 3, 6, 9, 10, and 11 weigh in favor of an award of alimony to

Wife. See Tenn. Code Ann. § 36

- 5

- 121(i). Even with rehabilitation, Wife‟s earning capacity will only measure as a fraction of the earning capacity of Husband. Husband

will in all probability maintain greater financial resources in the future than Wife. Th e parties enjoyed a marriage of relatively long duration. Wife is the primary residential parent of the children , spending a significant portion of her time engaged in activities

related to the children. The parties enjoyed a luxurious standard of living during the

marri age, with both c ontributing their efforts to the marital estate as wage earner and

homemaker respectively . Finally, as determined by the trial court, Husband must bear

the fault for the divorce. 2 Accordingly, while modifying its form and duration

, we aff irm the trial court‟s grant of alimony to Wife

.

Wife‟s ability to achieve partial rehabilitation is not disputed

, thus the award of rehabilitative alimony is proper. W e conclude , however, that it is appropriate to modify the transitional alimony award to an award of alimony in futuro

. As previously explained, transitional alimony should be awarded where rehabilitation is not necessary. Tenn. Code Ann. § 36

- 5

- 121(d)(4). If, as here, the disadvantaged spouse can be only partially rehabilitated, an award of alimony in futuro may be granted in addition to rehabilitative alimony. Tenn. Code Ann. § 36

- 5

- 121(d)(4). Having determined that the

trial court corre ctly found that W ife would experience an ongoing need for alimony beyond the period of rehabilitation, we conclude alimony in futuro would be the more

1 In 2010, Husband earned in excess of $500,000 by working for a dental practice in Memphis and supplementing his regular practice income. Husband testified that this was unlikely to recur in the future.

2 We note that this is a proper factor to be conside red based on Tennessee Code Annotated § 36

- 5

- 121(i)(11). Despite Husband‟s protestations, it is not the mere consideration of fault that renders an alimony award “punitive.” See, e.g., Tait v. Tait , 207 S.W.3d 270, 278 (Tenn. Ct. App. 2006) (holding

that where the trial court found that the wife needed no additional support in order to maintain a lifestyle commensurate with what she enjoyed during the marriage, any award of alimony based only upon the husband‟s fault would be purely punitive in nature and thus not allowed under Tennessee law).18

appropriate form of this award. We therefore modify the trial court‟s judgment accordingly. 3

B. Amount of Alimony Award

B ased on the foregoing, w e must address whether the amount of the alimony

award now modified as in futuro is appropriate, given the parties‟ circumstances and the long

- term nature of the award. We will also address whether the amount of the

rehabilitative alimony award is appropriate.

The courts of this state have often repeated that while consideration of all of the statutory factors is necessary whe n determining the proper amount of an alimony award, the most important considerations are the need of the disadvantaged spouse and the ability of the obligor spouse to pay

. See Gonsewski , 350 S.W.3d at 110; Lancaster v.

Lancaster , 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984) . In the case at bar, Wife filed an expense statement detailing monthly expe nses of $28,509. Several of these expenses, however, were shown to be non

- continuing due to the impending sale of the marital residence and lake lot. Further, Wife included expenses for the children that would presumably be somewhat satisfied by the rece ipt of child support. The trial court thus premised its award of “transitional” alimony of $2,288 per month for eight years on the estimate developed by Wife and Mr. Vance regarding the cost for her to purchase and

maintain a more moderate ly priced home. 4 Wife currently has no source of income with which to pay any expenses.

The trial court determined Husband‟s income to be $411,000 per year, based on

his 2011 federal income tax return. In support, t he court found that th e tax return was the

best evide nce of Husband‟s income as it reflected the growth in his dental practice but did not include the supplemental income he received in 2010 while working for the
separate practice in Memphis. We agree inasmuch as Wife‟s expert established and

Husband acknow ledged that the revenue from his dental practice had increased. Further,

Husband stated that the supplemental income from Memphis would likely not recur in the future. An annual income of $411,000 per year would equate to a monthly gross income

of approx imately $34,000.

3 Modifying the type of alimony from transitional to in futuro will, of course, render the award modifiable such that it may be may be “increased, decreased, terminated, extended, or otherwise modified, upon a

showi ng of substantial and material change in circumstances.” See Tenn. Code Ann. § 36

- 5

- 121 (f).

4 We note that the trial court‟s award of $6,451 per month until March 2013 was specifically designed to cover the cost of Wife‟s remaining in the marital residenc e until a certain date, which has long since passed.19

Similar to Wife, Husband reported expenses of $28,350 per month, including the monthly mortgage payments relative to the marital residence ($10,282) and the monthly

costs ($1,880) associated with its maintenance. The evidence was that the parties were in the process of selling the marital residence at the time of trial ; therefore

, upon closing

, this would no longer be an expense to be borne by either of the parties. We recognize

that Husband will h ave some expense related to his housin g, but such expense should not closely approach the $13,000 per month he was paying toward the marital residence. Husband also included almost $ 2

, 2 00 per month in expenses for food, clothing/laundry,

and recreation for the children when he enjoy ed co

- pare nting , at most, every other weekend, two weeks in the summer, and various holidays. As demonstrated at trial, Husband‟s expenses were clearly overstated.

While H usband earns approximately $34,000 per month , he is obligated to pay $3,423 monthly in child support . There was a dearth of evidence regarding what Husband‟s reasonable expenses would be post

- divorce. Assuming, arguendo , the deduction of a reasonable amount of monthly expenses, Husband would maintain an

excess of income with which to pay alimon y to Wife. We t herefore conclud e that Wife

has shown a clear need for alimony and that Husband has a demonstrated ability to pay.

As previously reviewed , the trial court awarded Wife rehabilitative alimony for three years at the rate of $3,600 per month. The court also awarded Wife “transitional” alimony of $2,288 per month for eight years and $500 per month for another eight years.

The court primarily established the “transitional” alimony award amount on an approximation of the cost for Wife to obtain housing and utilities for herself and the children. Based on the expense statements submitted respectively by Wife and Husband, we do not find either award to be excessive. Wife currently has no income

, and the rehabilitative alimony award will al low her time to regain her nursing license and obtain employment, which would give her the ability to contribute to her own support. As Wife will likely confront an extreme economic disadvantage compared to Husband following

rehabilitation , she will need an additional amount of alimony in order to maintain a standard of living reasonably comparable to that which she enjoyed during the marriage

, or which Husband will be able to enjoy following the divorce . We conclude that $2,288 per month is an appropriat e amount based on the purpose of rendering the standard of living reasonably comparable between the two households. See Tenn. Code Ann. § 36

- 5

- 121(c)(2).

As our Supreme Court has explained:

Not even long

- term support is a guarantee that the recipient spouse will be able to maintain the same standard of living enjoyed before the divorce because “two persons living separately incur more expenses than two20

persons living together.” Gonsewski , 35 0 S.W.3d at 108 (quoting Kinard v.

Kinard , 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)). Although the partie s‟ standard of living is a factor courts must consider when making alimony determinations, see Tenn. Code Ann. § 36

- 5

- 121(i)(9), the economic reality is that the parties ‟ post

- divorce assets and incomes often will not permit each spouse to maintain the same standard of living after the divorce that the couple enjoyed during the marriage. Gonsewski , 350

S.W.3d at 113. Decisions regarding the type, len gth, and amount of alimony turn upon the unique facts of each case and careful consideration of many factors, with two of the most important factors being the disadvantaged spouse‟s need and the obligor spouse‟ s ability to pay. Id . at
109

- 10.

Mayfield v. Mayfield , 395 S.W.3d 108, 115

- 16 (Tenn. 2012). Applying these principles,

w e determine that Wife has a nee d for at least $2,288 per month in addition to the rehabilitative alimony award, in order to maintain a standard of living reasonably comparable to that which she enjoyed during the marriage or that Husband will be able to enjoy following the divorce. We also determine that Husband has the ability to pay such an award. As previously stated, alimony in futuro remains within the trial court‟s control and is modifiable upon a showing of a substantial and material change of circumstances. Therefore, if the parties‟ financial positions undergo substantial and material change in the future, either party may petition for a modification of the alimony award

. We affirm the trial court‟s award of $3,600 per month in rehabilitative alimony for a period of three years. We modify, however, the trial court‟s award of transitional alimony by granting Wife an award of alimony in futuro of $2,288 per month until the death or remarriage of

Wife. See Tenn. Code Ann. § 36

- 5

- 121(f)(1). 5

C. Alimony in Solido

Husband also argues that the trial court erred in ordering him to pay $207,295 for
wife‟ s attorney ‟ s fees as alimony in solido

. The t rial court based its award on the fact

that Wife was awarded a “relative lack of assets” in the marital property di visi on. Husband asserts that Wife received $92, 121 as her share of the equity in the commercial real property and $215,188 as her share of t he dental practice, plus funds from other

small bank accounts. Because we have reversed the valuation of the dental practice, Wife

will likely now be receiving less value from the marital property divisio n . Thus, if Wife were forced to pay her attorney ‟ s fees of $207,295, the assets she received from the

marital estate c ould be depleted

.

5 Due to the demonstration of Wife‟s need and Husband‟s ability to pay in addition to the modifiable nature of an award of alimony in futuro , we conclude that there exists no reason for the award to automatically decrease to $500 per month after eight years.21

A s our Supreme Court observed in Gonsewski :

It is well

- se ttled that an award of attorney‟ s fees in a divorce case constitutes alimony in solido

. The dec ision whether to award attorney‟ s fees is within the sound discretion of the trial court. As with any alimony award, in dec iding whether to award attorney‟ s fees as alimony in solido

, the trial court should consider the factors enumerated in Tennessee Code

Annotated se ction 36

- 5

- 121(i). A spouse with adequate property and

income is not entitled to an a ward 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 exp enses, 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 t o pay, the court may properly grant an award of attorney's fees as alimony.

350 S.W.3d at 113 (internal citations omitted). Further, this Court has stated:

Our review of an award of attorney‟ s fees is guided by the principle that

“ „the allowance of atto rney‟ s fees is largely in the discretion of the trial court, and the appellate court will not interfere except upon a clear showing
of abuse of that discretion.‟” Mimms v. Mimms , 234 S.W.3d 634, 641 (Tenn. Ct. App. 2007) (quoting Taylor v. Fezell , 158 S.W.3d 352, 359 (Tenn. 2005)). “Reversal of the trial court‟ s decision [regarding] attorney fees at the trial level should occur „only when the trial court applies an incorrect legal standard, reaches a decision that is illogical, bases its

decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injust ice to the complaining party.‟” Church v.

Church , 346 S.W.3d 474, 487 (Tenn. Ct. App. 2010).

Hernandez v. Hernandez , No. E2012

- 02056

- COA

- R3

- CV, 2013 WL 5436752 at *8 (Tenn. Ct. App. Sept. 27, 2013)

.

A s previously explained, the statutory factors listed in Tennessee Code Annotated § 36

- 5

- 121(i) militate in favor of an award of alimony in solido to Wife. Wife currently has no income and no ability to replace assets. She will likely experience a significantly

l ower earning capacity than Husband. T he marriage was of fairly long duration with the parties enjoying a luxurious lifestyle

. Wife is the primary residential parent and primary caregiver for the children . In addition , both parties contributed to the marital estate, and22

as determined by the trial court, Husband was at fault for the termination of the marriage. Husband has the greater ability to pay such an award, which would otherwise require Wife to deplete a ny assets she was awarded from the marital estate. Therefore, based on these factors, we conclude that the trial court did not abuse its discretion in awarding

Wife $207,295 in attorney ‟ s fees as alimony in solido

.

Husband also asserts that the award of attorney ‟ s fee s was unreasonable because (1) as the trial court did not award all of Mr. Vance‟s fees, any entries for attorneys‟ time
spent corresponding with Mr. Vance should be disallowed, and (2) Wife presented billing entries from two attorneys and a paralegal, creating duplicate and unnecessary charges. We note, however, that the clerk and master held a full evidentiary hearing regarding the reasonableness of the attorney ‟ s fees incurred by Wife and specifica lly addressed all of
Husband‟s concerns in this regard . Further, the trial court approved and adopted the clerk and master‟s report. We determine that the evidence preponderates in favor of the trial court‟s award of alimony in solido and affirm that awa rd in all respects.

VI. Supplemental Proof

Husband asserts that the trial court erred in allowing the proof to be reopened and supplemented once the parties had rested. A t the close of the proof on July 3, 2012, the trial court scheduled a hearing for July 6, 2012, to conside r closing arguments. On July 5, 2012, Wi fe filed a motion seeking to re open the proof for the limited purpose of clarify ing her testimony regarding her parents‟ payment of her expert witness and
attorney ‟ s fees. Husband‟s counsel objected to such supplementation, noting that he would also desire to supplement the proof if Wife were given the opportunity to do so. In granting the motion, t he trial court stat ed that limi ted supplementation of proof could be presented by both parties. The trial court accordingly conducted a subsequent hearing on July 27, 2012, wherein the court allowed Wife ten minutes and Husband twenty minutes

, respectively, to present additional proof.

Husband contends that th e reopening of proof resulted in prejudice to him because Wife was allowed the opportunity to “change” her testimony regarding the payment of her attorney ‟ s fees. At trial, Wife was questioned regarding her attorney ‟ s fees, which

she stated had bee n paid by her parents. W hen W ife was asked whether she had signed any loan documents evi ncing an obligation to repay her parents, she replied that she had

not. While the proof was reopened, Wife clarified that she was, however, expected to repay these su ms to her parents after the divorce was final. As explained by her counsel,

t h e object of reopening the proof was to allow Wife to clarify that those sums had to be repaid. Husband was then granted twice as much time as Wife within which to supplement hi s proof and clarify his prior testimony . This was in addition to being23

allowed to cross

- examine Wife regarding the matter of her attorney‟s fees . We find no prejudice to Husband in this situation. This issue is without merit.

VII. Guardian Ad Litem Fe es

Husband asserts that the trial court erred in assessing the fees of the guardian ad

litem solely to him. Husband concedes that Tennessee Code Annotated § 36

- 4

- 132(b) (2014) states that the fees and costs of the guardian ad litem “shall be borne by th e parties and may be assessed by the court as it deems equitable.” Husband further concedes that the trial court is afforded a great deal of discretion in awarding costs. See Placencia v.

Placencia , 3 S.W.3d 4 97, 503 (Tenn. Ct. App. 1999) (“ Absent a clea r abuse of discretion, appellate courts general ly will not alter a trial court‟ s ruling with respect to costs. ” )

.

As explained above, “ An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice. This standard does not permit an appellate court to substitute its judgment

for that of the trial court

. . . .” Go nsewski , 350 S.W.3d at 105

- 106. Husband contends in his brief that the trial court‟s decision to assess the fees of the guardian ad litem solely to Husband is the result of a “clearly erroneous assessment of the evidence,” given “the Trial Court‟s recogni tion of Wife‟s campaign of parental alienation and subsequent
concern for the best interest of the children . . . .” Husband‟s argument regarding this

issue is unpersuasive

.

Although the trial court did express concern about implementing a permanent

p arenting plan that sufficiently addressed the best interest of the children in light of their reluctance to participate in co

- parenting time with Husband, the trial court made no finding that Wife had attempted to alienate Husband from the children

. Rathe r, the court found that the children had thwarted Husband‟s attempts to visit with them. There is no

basis in the record for this Court to find that the trial court abused its discretion in the assessment of the fees of the guardian ad litem

. We determin e this issue to be without

merit.

VIII. Wife‟s Federal Tax Liability

Husband asserts that the trial court erred in assessing Wife‟s additional federal tax liability of $16,022 to Husband . The court found that the liability resulted from
Husband‟s deci sion to transfer funds from his 401(k) in order to satisfy part of his obligations from the di visio n of the marital estate. Following the trial court‟s distribution of the marital estate, Husband owed Wife certain monetary obligations, including an

indebt edness of $92,121 owed to Wife for her share of the equity in the parties‟24

commercial real property. Husband sought to transfer this amount to Wife from his 401(k) via a Q DRO . The court approved such a transfer but ordered that Husband would be responsib le for any tax liability Wife incurred as a result.

The trial court subsequently entered a QDRO effecting a withdraw al in the amount of $115,151 from Husband‟s 401(k). The 401(k) administrator withheld $23,030 from

that amount for “federal income tax” a nd sent Wife a check for the net amount of $92,121 . Such was the exact amount of Husband‟s obligation with regard to the commercial property. Wife later received a Form 1099

- R from the 401(k) administrator for the full amount of the distribution, $115,15 1. Wife represented to the trial court that

inclusion of this amount as income on her 2013 federal income tax return resulted in additional tax liability of $16,022 for her. Husband argued that the additional tax liability was due to income from pensions and annuities received by Wife.

The parties submitted written arguments regarding this issue to the trial court. Upon reviewing th ese documents , the trial court determined that Wife‟s increased tax liability was in fact a result of the transfer from Husband‟s 401(k). The court further found that Wife was assessed income from this transfer of $115,151 even though the plan administrator withheld $23,020 for federal income tax, resu lting in Wife‟s receipt of the

net amount of $92,121. Considering the evidence, t he court noted that the tax withheld by the plan administrator represented the tax incurred for Husband‟s “cashing out” part of his retirement account. The additional tax incurred by Wife, however, was a result of t his additional income. As Wife points out, had she s imply received a cash payment from Husband representing her share of the division of marital assets, a non

- taxable event

would have occurred . Rather, Husband‟s choice in paying this obligation utilizing his 401(k) resulted in the 1099

- R being sent to Wife , thereby requir ing her to report these

funds as income received. Ergo , the evidence does not preponderate against the trial court‟s finding that Wife‟s increased tax liability was caused by Husband‟s u se of

r etirement funds to effectuate a division of marital property. We find no merit in Husband‟s argument.

IX. Expert Witness Fees

Wife asserts that the trial court erred in failing to require Husband to pay the full

amount of fees and costs for Wif e‟s business valuation expert, Mr. Vance. Expert witness fees are allowable as discretionary costs by the trial court. See Tenn. R. Civ. P. 54.04; Massachusetts Mut. Life Ins. Co. v. Jefferson , 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002) . Again, the trial c ourt‟s decision to grant or deny such costs is reviewable under an

abuse of discretion standard. Id

.25

Mr. Vance testified at trial that his fees totaled approximately $45,000. The trial court only assessed $5,000 of these fees to Husband, stating that i t was “not convinced” that Wife would have to repay her parents for the amounts they paid to Mr. Vance. Further, the trial court noted that many of Mr. Vance‟s opinions were not “particularly persuasive.” Wife asserts that these fees should have been pai d by Husband because his conduct caused the divorce and because he had greater ability to pay the fees without depleting his assets.

We are not persuaded that the trial court abused its discretion in denying Wife the
full amount of Mr. Vance‟s fees. We find nothing in this record to demonstrate that the
trial court “ applie [d] an incorrect legal standard, reache [d] a decision that is illogical,

base [d] its decision on a clearly erroneous assessment of the evidence, or employ [ed] reasoning that cause [d] an injustice to the complaining party .” See Massachusetts Mut. Life Ins. Co ., 104 S.W.3d at 35

. We emphasize that the trial court‟s decision must be upheld so long as “ reasonable minds can disagree about its correctness .” Id . We

therefore affirm the trial court‟s decision regarding this issue.

X. Child Support

Wife also argues that the trial court abused its discretion when setting Husband‟s child support obligation because the court failed to set support based on the actual number of days Husband spent with the children. The trial court based the child support

award on the recitation in the permanent parenting plan that Husband would have the children for 160 days per year . The trial court noted that this plan would be implemented following a short “transition period.”

Wife asserts that Husband has rarely parented the children overnight following entry of the trial court‟s order. This Court has no evidence in the record , however, demonstrating this assertion to be fact. The trial court ordered that Husband would have 160 days of co

- parenting time with the children, and this order has not been modified. Therefore, this Court has no other proof regarding the actual co

- pa renting time currently being exercised. In the absence of such evidence, we conclude that t his issue is also

without merit.

XI. Attorney ‟ s Fees on Appeal

Finally, Wife contends that she should be granted an additional award of attorney‟s fees incurred in defending this appeal. As this Court has previously

elucidated:26

Our supreme court has defined the factors that should be applied when considering a request for attorney fees incurred on appeal. These factors include the ability of the requesting par ty to pay the accrued f ees, the requesting party‟ s success in the appeal, whether the requesting party sought the appeal in good faith, and any other equitable factor that need be

considered. See Folk v. Folk , 357 S.W.2d 828, 829 (Tenn. 1962).

Dulin v. Dulin , No. W2001

- 02969

- COA

- R3

- CV, 2003 WL 22071454 at *10 (Tenn. Ct. App. Sept. 3, 2003)

.

Considering these factors, we conclude that Wife is entitled to an additional award of attorney‟s fees on appeal. Although Husband achieved some limited success regarding

the issue of business valuation on appeal , Wife prevailed on the trial court‟s alimony

determination s as well as the other issues raised by Husband. Further, we recognize that Husband has a greater ability to pay the requested fees. Therefore, we remand this issue

to the trial court f

o r the limited purpose o f determining a reasonable amount of attorney ‟ s fees to be awarded to Wife for successfully defending a significant portion of Husband‟s appeal.

XII. Conclusion

For the foregoing reasons, we reverse the trial court‟s valuation of the dental practice, and we remand this matter to the trial court for a proper determination of the

value of that asset. The trial court will also be required to reexamine division of th e parties‟ marital assets as necessary, in accordance with its valuation of this asset, in order to effectuate an equal distribution between the parties. We modify the trial court‟s award of transitional alimony to an award of alimony in futuro in the amo unt of $2,288 per

month . We also remand

, for the trial court‟s determination, the issue of a reasonable award of attorney ‟ s fees to Wife incurred in defending th is appeal. We affirm the trial court‟s judgment in all other respects. Costs of this appeal are assessed to the appellant,

Andrew R. Lunn.

_________________________________ THOMAS R. FRIERSON, II , JUDGE