## IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE January 16, 2019 Session **LARRY MARK MANGUM v.**  **LANEY CELESTE MANGUM Appeal from the Chancery Court for**  **Hamblen County**  **No. 2016**  **- CV**  **- 323**  **Douglas T. Jenkins , Chancellor** 

**___________________________________ No. E201**  **8 -**  **0 002**  **4 -**  **COA -**  **R3 -**  **CV**

**___________________________________** In this appeal, th e wife challenges th e tri al court’s designat io n of t he husband as th e primar y resident ia l parent of

t he minor children, th e craft ing of t he parent ing plan, and th e marital pr operty determinations . T he tri al court neglected to make findings under th e appropri ate statutory p rovision s. We vacate th e judgment except as to th e divorce and remand wi th instructions to mak e findings of f act and concl

usion s of law that consider all t he relevant and applicable statutory

f actors. **Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated**  **; Case Remanded**  J OHN W. M C C LARTY , J., delivered the opinio n o f the court, in which C HARLES D. S USANO , JR ., J., and D. M ICHAEL S WINEY , C .J. jo ined. C. Scott Taylor and Margo J. Maxwell , Knoxville , Tennessee, and Wayne R. Stambaugh, Morri stown, Tennessee, fo r the appellant, Laney Celeste Mangum
. Douglas R. Bei er , Morristown , Tennessee, for the appellee, Larry Mark Mangum

. Cynthia A. Cheatham, Nashville, Tennessee, and Sylvia O. Tsakos, Washington, D.C., Amic i Curi ae . **OPINION I. BACKGROUND**  This divorce invo lves a tum ul tuous marriage of

s ix years between prof

essional parents who both worked fu ll

- time. T he couple ha ve two yo ung sons (age s 4 and 6 at th e time of t he tri al)

. When the parti es began thei r relationship , Laney

C eleste Mangum (“ Wife ”) was 30 year s old and a pharmacist. Larry Mark Mangum (“ Husband ”) was 55 years old and the sole owner of2

an established vete rinar y practice in Hamblen Count y . Husband also owned several farms wi th cattle and livestock. A ddi tionally, h e owned real

p roperty and various assets related to hi s cattle business. Husband’s gross income for 2016 was $366,209 ; Wife’s inco me fo r th e sa me year was $134,063. In June 2010, before th e couple marri ed, Wife discovered that she was pregnant
. T he parti es’ fi rst child , Sam

uel, was born on January 29, 2011. In order that Wife could cont inue working as a pharmacist af ter th e b irth

of h er son , her mo th er reti

red fro m her jo b to b eco me a full

- time caretaker fo r th e child

. In December of t hat year , just before Samuel’s birth, Husband purchased a far mhouse and acreage at 1735 Needmore Road, Whit esburg, Tennessee (“the Needmore Road property ”). T he Needmore Road property w as purchased by Husband as so le owner , al though Wife notes that it was refinanced wi th both Husband’s and Wife’s financial informat io n. While wai

ting on remodeling of th e far mhouse, th e parti es and Sam uel lived in a property owned by

Wife’s parents at 1816 Leia Drive in Morristo wn (“the Leia Drive property”). The parties were married on November 26, 2011. T his was th e fi rst marriage fo r Wife and th e second marri age fo r Husband

. L ess than a year lat er, o n August 6, 2012, Husband was fo und guil

ty in federal district court of t he felo ny of

s tructuring fu nds to avoid filling out a currency transact io n report. He was ordered to serve five years o n probation, perf orm 350 hours of c om munit y service, pay a $50,000 fine, and serv e two 30

- day p eriods of

int ermittent confinement. The fo llo wing year, t he parti es’ second child , John Mark, was born on April 26, 2013. The parti es separated on July 1, 2016
. Wife filed fo r an order of protection , and she a nd th e children mo ved back in to the Lei a Drive property
. Six days later, Husband filed a com plaint fo r divorce , r equest ing that he be designated primary r esidential parent wi

th e qual co - parent ing time on a four/three day

spli t. The trial was held on October 5

- 6, 2017. Counselor, Nan Buturff, a licensed clinical soci al worker, testified at tri al t hat she had met wi th t he children and observed t heir aggressive behavior toward Wife. S he discussed the differing disciplinary st yles of t he parents and th e Mother’s use of t ime out vers us Father’s corporal di scipline. Ms. Buturff related that she does not believe in corporal p unishment ; in her view, iti s in effect ive, does not teach respect, and ito nly humiliates and angers a child. M s. Buturff opined that “corporal punishment needs t o be a thing of t he past” in regard to th ese children. She admitted that she was unaware of Wife’s psychiatric history, if any

. Husband testified that Wife worked all th e time , stayed in bed when she was home, and did not help much wi

th t he children. According to Husband , he hired maids, cooks , and caretakers to help him attend to th e bo ys. H e stated that he spends his mo rnings wi th t he children and takes th e m wi th h im to th e clinic. Husband further related that h e had raised his two older children f

rom his first marri age in the same environment . He noted that one of them is a veterinarian and th e other is a teacher. Husband opined that Wife’s parents were a big problem in th e marri age , al ways wanting to take control

o f th e children. H e observ ed that Wife lo ves her sons but cannot take care of3

th em . Rather, Wife relinquishes th e care of t he children to her parents and her fr ie nd, Lauren Rice. As to discipline, Husband testified that he would spank the children if th ey needed it , but because his sons were aware of that fact, he has never had a problem wi th th em . He cl aimed to have never “switched” th e bo ys . According to Husband, his sons have “ a problem so met imes wi th f ocus. I f I tell th em to do so met hing, th ey d o it , if I tell th em not to do s omething, th ey don’t do it .” Husband testified regarding his normal daily routine wi th t he children , observing that h e fixed th e m breakfast, t ook th em t o th e far m, and to th e library and other activit ies. H e r e lat ed that he often fed th em dinner and prepared th em f o r bed. Husband expressed his belie f that iti s important to raise t he children in a Christ ia n environment , and he pref erred that th e children get Chr ist ia n counseling if th ey needed any th erapy . He disagreed wi th Ms. Buturff about the pro per ways to di scipline children , and he o bserved that Wife turned every l it tle scratch, bump, or brui se on th e bo ys int o an allegat io n of abuse or neglect. Husband’s th

ree sisters, Karen Rochelle, Kathy Angle, and Rebecca Mason, all opined that Husband “i s a very good fat her.” They observed that th e bo ys behave wi th t heir father and respect his discipline. They recalled that Wife made statements to th em that she is not able to take care of th e bo ys wi thout help , that she would rather be at work than taking care of th e children , and that she cannot handle them alone . Lara Miller, Husband’s veterinary of fice ma nager fo r 15 year s, testified that th e children come to th e clinic wi

th Husband , enj oy

b eing th ere, and are well behaved when th ey visi t. Ms. Mill er opined that Husband is “a very g ood dad” and a “very good boss.” She stated that Wife had co mmented in front of t he bo ys that she did not want to be a mot her and did not know why people wanted to be wi

th thei r kids. According to Ms. Miller, the commen t brought near tears to th e eyes o f Samuel . She further related that Wife ha d on numerous occasions s t ate d that she was having problems wi

th t he children and could no t handle th em. Ms. Miller noted that o n one occasion, Wife , very

u pset , related that she was ti red of b eing a mo th er, that she did not want to be around her bo ys, and that she did not know why people wanted to stay home on th eir day off to be wi th children. On other occasions, she came to th e clinic and would go int o th e lo unge , slam th e door , and state that she was t ir ed and did not want to be a mother anymore. Husband has two adult daughters fro m his first marri age. O ne of t hem, Leann Ev ans , testified that she frequent ly s aw h er father wi th the two boys. She observed that t he children respect Husband and noted that th ey run up to him, grab him, h ug him around the neck, a nd grin fro m ear to ear. She related that th e bo ys are very well

- behaved wi th Husband , who is a “ver y good fat her” to his sons . S he re cal l e d th at she was clos e to Wife before th e separat io n and that Wife would confide to her that she was very stressed by being a mo th er . A ccording to Ms. Evans, Wife stated, “She’d rather be at work tw ent y...t went y- fo ur hours a day, seven days a week...than to be home wi th h er boys, that she did not know how I could do i t. She could never do it .” Ms. Evans also observ ed that she rarely s aw Wife caring fo r th e children and that Wif e usually was in bed unt il twelve or one o’clock on the days Ms. Evans was there. Husband would be the one to mak e breakfast for the children, get them dressed, and get them going.4

Wife t estifi ed that th e children were of ten aggressive, vio lent, and out of c ontrol w hen th ey we re wi

th h er. In addi

tion , Wife alleg ed domestic abuse. According to Wife , Husband hit her in October 2015 and January 2016. As to th e October 2015 incident , Wife r e call ed that th e couple had a di sagreement about a woman moving into one of Husband’s properti es :

A.

. . . I didn’t actually punch a Capri Sun on his head but I d id squi rt itt owards th e bed. I t might have got in his eye but I never touched him. And I went int o th e bathroom and I don’t remember how i t all happened, if he was in the shower afterwards or before i t but itwas just lik e just the things that he was sa ying to me and the way that he tal

ked to me and

. . . I was si tting down in my chai

r wi th my makeup vanit y open and th ere’s

. . . a lit tle pull

- out drawer beside of me and ... (wi tness paused) ... he came up to me and his hand was flat and it

... h e pushed me out like that right th ere. Q. Y ou need to describe it f or th e Court Reporter and it ’s not being videotaped. How and where he hit y ou? A. Li ke on my neck, wi

th open flat hand. Q. What side? A. Oh gosh . . . (wi

tness paused) . . . so I was si tting over like that way and so he would have hit me on thi s side. Q. So would that be your right side or your lef t side? A. My l ef t side. Q. Al right. Then what happened after that? A. ( Wit ness paused) I fell to th e flo or. ( Wit ness paused) And I rememb er laying th ere and he came over th ere and si t over top of me and said “I never did this to yo u before because I respected yo ur f ather. But thi s is my house and I’ll do what I want to.” Q. Did that scare y

ou? A. Yes. Regarding the January

2016 incide nt , Wife testified as fo llo ws : A. We had went to church at Fi rst Bapti st and left. We had th e bo ys wi th u s and we were driving...I was driving my parents’ car.5 . . . I think that Larry had asked if th e bo ys wanted to go to Taco Bell and Samuel

s aid he wa nt ed chicken. And so we went over to KFC and got in line in th e drive

- th ru and we ordered

. . . . Larry had left his truck atth e clinic that mo rning and

. . . we were going to g o back by th e clinic and he was going to g o to work and I was going to go to his parents’ house wi th t he bo ys. And we got up th ere to pay

f or the chicken and I didn’t have my purse because

. . . my purse was in the trunk wi th my phone. And he. . . I asked him fo r some money. And he said, “No. You have all the money . You can p ay fo r it .” A

nd I ju st lo oked atth e lad y in th e drive

- th ru and said, “Well we’ll

b e back.” And I pulled out on the road and took off towards th e clinic and I remember I didn’t say o ne...not one single word. I ’ve got a habit of

... ( wi tness paused)...I ju st don’t say any th ing. And on th e way fro m th e mall going down towards th e clinic I just remember thinking to myself “t his is what my kids are goi ng to remember, him

tal king to me like this.” Q. And they

were in the car when all this happened? A. Yes. Q. Okay. And so what did you do next? A. And we got to the clinic and parked ...we pulled in and he goes to get out of

t he car and as he goes ... I had lo cked th e doors and he opened the door, went in through the door to open itup or went to grab John Mark’ s door and at that time his door was still open and

. . . I was putti

ng th e car in reverse and he jumps on...grabs a ho ld of t he doorframe, like where th e window is and swings back int o the car and hit me. Q. Hi t y ou how? A. Li ke swung over wi

th his arm. Q. Did he black y

our eye? A. No. Q. What did he do to y

our lip? A. It was busted. Q. Okay . Did you run over his foot? A. No.6 Q. Do you remember running over any th ing? A. No. Husband responded that he did not abuse Wife and that th e pictures she int roduced show ing bruises on her thigh and arm o ccurred in a 2015 fa ll

. According to Husband, Wife squi rted a drink in his face as he was ly ing in bed asleep, smacked him on th e head wi th th e carton , and then threw a porcelain platter at him . H e claimed that when he jumped up , Wife ran int o th e bedroom, tri

pping over a chair and hit ting th e vanit y table wi th h er side. Husband asserted that he did not touch Wife . Three or f our days later , when he saw her taking pictures of her bruises , he asked her, “Are y ou insinuating that I put those on y ou?” S he replied , “ Well, y ou made me do it.” Husband testified further:

A. She told me that she had problems in th e very f irst incident when she threw the Kool

- Aid on me. She said, “I’m s orry . Please fo rgive me . . . I’m

. . . I’m crazy . Thi s is th e way I am .” And I said, “No, yo u’re not crazy. . . . ” And she said, “No, re ally, I’m certifiable.” I s aid, “What are yo u tal king about?” And she said, “I see a psychiatrist.” And she said...she says, “I have problems wi th depressio n.” And then she says, “I could really kill somebody and get by wi

th i t
. . . . ” Well as t ime wen t on she continued to tell me th e very same thing, that she had mental c ondi tions, that she suffered fro m depressio n, and that she had suicidal tendencies, that she had thought about k illing herself. I s aid, “Hey yo u don’t need to b e doing that.” I s aid, “I f yo u are th en yo u need to b e on so me medicat io ns.” Something along those lines. S o th ere was oth er times that she would co me back in though and she kept apologizing af

ter the incident. For exam ple, the next time that she had

. . . started on me, I p utm y hands up like thi s. Well she grabbed my fingers and

. . . c ause she was beating me over th e head and she ben

t my fingers back. And there again, I never laid a hand on her. I w as just protecting myself. And th en she came back and she would apo lo gize. And pretty s oon it got to the point where she was doing itw it hout apologizing. S o she was getting used to, you know, that ty pe of act ivit y. Q. So you continued to live wi th a woman yo u say was abusive to yo u? A. Right. Q. What happened, th e in cident that ledto h er driving th e car out int o Morri s Boulevard?7 A. Okay. We had gone to ch urch that day

. . . . And we went to pick up so met hing to eat. We normally try t o pick up chicken or some other so met hing and take ito ver to my parents ’ house on Sunday. T hat’s usually thei r day

. And we went by to get itat Bo j angles. E very

t ime in th e past year I had been paying fo r everyt hing and we pulled up to th e window and I said, “Honey go ahead and take care of this, okay?” And she said, “Well I’m not going to pay

f or i t.” Q. Was she driving? A. S he was driving. And she was at th e window. Well th ey got th e stuff together and she drove out. S he left th e chicken place. We pulled int o th e parking lo t a t the office and she started. I said, “Bo ys co me on let ’s get out.” I s aid, “I’m going to have to take yo u and get y

ou something to eat.” Q. Oh she didn’t buy

the f ood? * * * A. No she drove off leaving itth ere in the window. And then she started screaming and rant ing and raving and th e kid s were in the backseat

. . . and I said, “Come on boys.” I said, “Let’s go.” Well as I stepped out of

t he car I had th e door open and she put itin reverse and mashed on the gas. Well as she did that door knocked me down and [the car] ran over my fo ot. Well I pulled myself

. . . was able to pull myself back and get up int o th e car and she was screaming and carrying on and she ’d pulled out in th e middle of Morri s Boulevard

. . . . I said, “You’re going to have to get this car out of t he road.” I s aid, “People’s going to come up here and th ey’re going to hitu s and could possibly kill u s and th e children that’s in th e backseat.” S he was actually blocking th e la ne of traffic. And so I put my fo ot ov er th e conso le, put the fo ot on the brake, put the car in reverse, mashed on the gas, backed it up, put it back in park, tu

rned ito ff and pulled th e key out. A nd th e exchange w h ere she got h er lip hitth ere in th e middle of i t was in th e parking lot before we pulled out into the

. . . into the traffic

... . Q. What happened?

*** Q. If you didn’t hi

t her lip what happened?8 A. Well she

. . . when she was screaming

. . . when she qui t screaming she just kind of looked th en and th en I got the bo ys out and took th em

int o th e clinic and th en she got out and called her mo th er and then her mo th er came and she said, “This doesn’t need to be going on in front of t hese bo ys.” Wel l itd idn’t need to be going on period. But that

. . . that was th e incident. B ut then two or three

. . . I don’t know how much lo nger, a fe w weeks, or so, I don’t know exact ly th e time period but I got a call from my probation officer and th e probat io n officer says, “I understand that th ere’s been a domestic vio lence

. . . that yo u . . . that so mebody had seen yo u smack yo ur wife in front of t he

. . . or punch yo ur wife

. . . in the middle of M orri s Boulevard.” I s aid, “T hat’s not true.” I e xplained to [probation officer] what had happened and that she ran over my fo ot and ran over me in th e parking lo t and I got back in and in th e al

tercation she got hitin th e lip.” And

. . . well she says, “I’m going to recommend that yo u have counseling.” And I said, “Well that may be a blessing in disguise

. . . .” I said, “ Our marriage really needs to have it.”

*** Q. Have there been other incidences where fo r no reason apparent to yo u that y

our wife went off into dramat ic fit s? A. Yes.

*** A. And there was one si tuation that she went off and

. . . and see that was in January . And then we had a good period of time in th e spring but th en she started getting jealous over another

. . . a gi rl that was working for me. And i t wasn’t but like an 18 year old gi rl

. And she said, “Well yo u took her out and

. . . . ” S ee sometimes I have to go out and pull blood on horses fo r Kargans testing. S o I’ll take out a s ecretary o r one of

t he gir ls and th ey’ll fill out th e paperwork while I actually do th e vaccinating and pulling th e blood. And th en we’ll go back to th e . . . back to th e office and get itr eady f or th e lab. And she says, “Well I understand yo u took out

. . . yo u went out and

. . . itd oesn’t lo ok good fo r yo u to be taking a gi rlo ut wit h yo u on a call.” And I said, “Listen, if I wanted to have any thing to do wi

th anoth er gi

rl I would have

. . . I wouldn’t have married y ou. I could have done i

t a lo ng time ago.” I s aid, “I don ’t know why yo u don’t have th e confidence and securit y in me but

. . . . ” [A] nyway, that was one of the si tuations . . . .9

Wife and her mo th er alleged injuries to the children during the time that they were under th e supervisio n of

Husband or Husband’s family members acting as caretakers. When Husband worked, th e children were cared fo r by his family or taken to th e clinic where he and his staff watched th em . Wife further alleged that Husband’s sister had abused th e oldest son by hit ting him wi th a s wi tch. D uring quest io ning about her abuse allegat io ns toward th e children, Wife testified: A. Y eah. I m ean, it ’s like when th ey’ve co me home it ’s like

th ey’re constant
. . . th ere’s constant injuries and th en like th e mo torcycle burn and John Mark had bruises on his back too from falling o ff the pony. (Witness paused) Court: Well that’s pretty normal bo y stuff I think, yo u know, based on my experience. S o, yo u know, if you’ve got some evidence that somebody’s abusing th em or anyt hing, yo u know th en . . . and I’m

t alk ing mo re than ju st giving th em a g ood whipping. I’m talking about some sort of abuse. I’ll listen to it. The tri al court noted in August 2017 how difficult the course of the case had been: Look this is th e biggest me ss I’ve ever see n in my life. I t’s a terrible mess and th e two of you all are going to come out of t his and be about th e same way yo u were before but yo u’ve got th ese two lit tle bo ys and th ey are going to be th e casual ti es of this war yo u’re fighting. In a final judgme nt rendered on December 7, 2017 , th e tri al court order ed th e parti es divorced and approv ed a parent ing plan that granted th e parti es equal co - parent ing time wi th jo intd ecisio n making and Husband as th e primary residential parent. The tri al court awarded Wife all of

h er int erest in her 401(k) and her personal b ank account. S he was allowed to retain th e $9 , 700 in cash of

Husband’s property

a nd was awarded all int erest in her personal property listed. Husband was awarded all int erest in the marital residence, his IRA, his business account, personal accounts , livestock , and an ant ique car . Husband was held so le ly responsible fo r th e l ine of c redi t. Addit io nally, he was awarded as his so le p roperty th e remaining real property, personal property, and far m equipment. Husband cont inued to live at t h e Needmore Road property, which was awarded to Husband as his separate property, al though the c ourt did award Wife $25,000 fo r her share of t he increased value as a resul t of i mprovements. In t he tri al court ’s me mo randum opinion , th e court “believe[d] that th e increase in val ue or th e increase to th e mar it al estate during th e marri age on th e mari tal home is th e equivalent of o ne hundred thousand dollars ($100,000.00). ” “The court found that ‘the Wife’s share of the cattle is twenty
five thousand dollars ($25,000.00).” The court opined that he believed he was awarding Wife a bitmore than 50% of the marital estate:

I find that it ’s just a wash. T here were so me t hings accrued or increased during th e marriage but th ey were sort of a ccrued on both sides so th e Court doesn’t believe that itw ould be equi table10 fo r any mo ney to change hands. T he Court’s calling ita w ash. And that fa vors th e Wife because she gets to retain her sizable 401K.

*** I believe, th e way I t hink about th e numbers, that I have favored th e Mother a lit tle bitin th e number and it ’s probably not up to sixt y fo rty

( 60/40) but it ’s mo re that she gets mo re than fift y percent (50%) I guess of w hatever accrued during th e marri age because I’m just knocking her who le ret ir ement fund of f to her. But if yo u lo ok a

t i t and yo u beco me convinced that I’ve given her less than fift y percent some way or other then br ing itb ack bef ore th e court in a Motion if yo u don’t mind and let me at le ast hear what you’r e thinking, okay

. As to the parenting plan, t he court observed that it was “t roubled . . . because nothing I try to do fo r you guys seems to work.” The court continued:

I think Mo m th ere’s a lo t of t estimo ny fro m fr iends of y ours and insinuat ing on th e record that yo u were planning on mo ving somewhere. And if that’s what is best fo r yo u . . . th e Court abso lut ely is not telling so meo ne th ey can or cannot mo ve. T he fathe r is anchored. I know the kids will have a roof over thei r head th ere. And for that reason the Court is choosing to make the Father th e primarily resident ia l parent. B ut th e ma in reason I’m d oing that is because of this indicat io n that y ou may move . . . . But I am going to try

t o split th e time wi

th you two as close to equal as I can get.

*** Mr. Stambaugh: . . . [A]re we tal king a fo ur/three (4/3), three/four (3/4) that would al

ternate a fift y/ fift y (50/50) schedule like Nan Buturff suggested in he r testimo ny? Court: Yeah that’s what I want to do. Yeah.

*** Court: . . . I’m making the Father the primary custodi an because if she decides to move so mewhere I want her to have to give him the notice and I want the case to have to come back bef ore me and me hear ita gain. . . . Bu

t s he testified from

th e wi tness stand that she11 had no immediate plans to go anywhere al though maybe in her heart of hearts she’d like to . . . . After the court’s ruling, Wife timely filed her appeal.
**II. ISSUES** The fo llo wing i ssues are raised by Wife in this appeal: A. The tri al

c ourt erred in declaring th e parti es divorced pursuant to Tennessee Code Annotated section 36

- 4

- 129(a), as th e parti es did not j oint ly st ipulate to grounds to divorce. B. The tri al court erred in approving and ordering Husband’s permanent parenting plan providing equal parent ing time. (1) The trial court erred in failing to make specific findings of f act as to th e statutory

f actors in Tennessee Code Annotated section 36

- 6

- 10 6(a). (2) The tri al court erred in not limit ing Husband’ parent ing time fo r domest ic v io lence under Tennessee Code Annotated section 36

- 6

- 406(a)(2). (3) The tri al

c ourt erred in designat ing Husband primary resident ia l parent under Tennessee Code Annotated sect io n 36

- 6

- 406(a)(2). (4) The tri al court erred in ordering that (1) the parents find a “Christian counselor” fo r th e children and requi ring that (2) th e children remain in Wednesday n ight church activit ies at First Baptist Church. C. The tri al court erred in i t s classificat io n valuatio n, and division of the parties’ marital property

. (1) The trial court erred in failing to co nsider th e factors listed in Tennessee Code Annotated section 36

- 4

- 121(c) in making its equitable divisio n o f mar it al property. (2) The tri al court erred in it s calculat io n of W ife’s share of th e mari tal estate. D
. Is Wife ent it led to attorney’s fees and lit igatio n expenses on appeal.12 **III. S TANDARD**  **OF R** **EVIEW** This case was tri ed wi

thout a j ury. We review the findings of fac t made by the tri al court de novo, wit h a presumption of c orrectness unless th e preponderance of t he evidence is to th e contrary
. T enn. R. App. P. 13(d) ; In re C.K.G., 173 S.W.3d 714, 731 (Tenn. 2005)

. T he tri al court’s concl

usion s of l aw, however, are r eviewed de novo and “are accorded no presum ption of correctness.” Brunswick Acceptance Co., LLC v

. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008). Parent ing and visi

tation arrangements are recognized as “amo ng th e mo st important decisio ns confront ing a tria l court in a divorce case.” Chaffin v. Ellis , 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006). I n mak ing such decisio ns, th e needs of th e child are paramount, and th e desi res of t he parent are secondary

. Id. While tri al courts have broad discret io n to mak e p arent ing decision s, th ei r determinat io ns must be made based upon proof a nd applicable principles of

l aw. Id. Given th e discretion invo lved and the fa ct that th e decisio n of ten hinges on wi tness credibilit y, our court has stated that “appellate courts are lo athe to second

- guess a tri al court’s conclusio n.” Id. In a case invo lving th e proper classification and distribut io n of a ssets incident to a divorce, th e Tennessee Supreme Court has elucidated the applicable standard of appellate review as fo llo ws: Th [ e ] Court gives great weight to the decision s of th e tri al court in dividing marital assets and “w e are disinclined to disturb th e tri al court’s decisio n unless th e distribut io n lacks proper evident iar y support or resul

ts in so me e rror of law or misapplicatio n of statutory r equirements and procedures.” Herrera v. Herrera , 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). A s such, when dealing wi th the tri al court’s findings of fact, we revi ew the record de novo wi th a p resumpt io n of

c orrectness, and we must honor t hose findings unless th ere is evidence which preponderates to th e contrary
. T enn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993 ) . Because trial c ourts are in a far better posi

tion than this Court to observe the demeanor of the wi tnesses, the weight, fait h, and credit to be given witnesses’ testimo ny lies in th e fi

rst instance wi

th t he tri al court. Roberts v. Roberts , 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequent ly, where issues of c redibili ty a nd weight of

t e stimony are invo lved, this Court will accord considerable def erence to th e tri al c ourt’s factual findings. In re M

. L.P. , 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) ( c it ing Seals v. England/Corsair Upholstery Mfg. Co. , 984 S.W.2d 912, 915 (Tenn. 1999)). T h e trial court’s concl usion s of law, however, are accorded no presumption of correctness. Langschmidt v. Langschmidt , 81 S.W.3d 741, 744

- 45 (Tenn. 2002).13

Keyt v. Keyt , 244 S.W.3d 321, 327 (Tenn. 2007). Q uestions relating to th e classificat io n o f assets a s marital or separate are questions of f act. Bilyeu v. Bilyeu , 196 S.W.3d 131, 135 (Tenn. Ct. App. 2005).

Because Tennessee is a “dual property” state, a tri al court must ident ify all of

t he assets possessed by th e divo rcing parties as ei th er separate pr operty

o r mar it al

p roperty

b ef ore equi tably dividing th e mar it al

e state. S eparate property is not subject to divisio n. I n contrast, Tenn. Code Ann. § 36

- 4

- 121(c) outlines th e relevant factors that a court m ust consider when equi

tably dividing th e mar it al property wi

thout regard to fault on th e part of e it her party
. An equi

table division

o f marital property

i s not necessarily an equal division , and § 36

- 4

- 121(a)(1) only requires an equitable divisio n. McHugh v. McHugh , No. E2009

- 01391

- COA

- R3

- CV, 2010 WL 1526140, at *3 (Tenn. Ct. App. Apr. 16, 2010) (internal ci tations omit ted). See Manis v. Manis , 49 S.W .3d 295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of m ari tal property “ ordinarily def er to th e tri al judge’s dec isio n unless iti s inconsistent wi th th e factors in Tenn. Code Ann. § 36

- 4

- 121(c) or is not supported by a preponderance of the evidence.”).
**IV. DISCUSSION A**  **.** Tennessee Code Annotated section 36

- 4

- 129 provides: (a) In all actions f

or divorce from

th e b onds of matrimony or legal separation the parties may st ipulate as to grounds and/or defenses. (b) T he court ma y, u

pon sti pulat io n to or proof

of any g round fo r divorce pursuant to §36

- 4

- 101, grant a divorce to th e part y who was less at fault or, if e it her or both parties are ent it led to a divorce, declare th e part ies to be divorced, rather than awarding a divorce to either party

alone. Att he final hearing, th e tri al c ourt st at ed: “ I’ve heard enough al ready to know that th ere’s probably fault on bot h sides. I ’d be inclined to declare th em d ivorced pursuant to 36

- 4

- 129(b), which is a statute that says if I hear fault on both sides I can just declare th em divorced. So I’d be inclined to do that.” I n t he findings of t he c ourt , it declared th e part ies divorced pursuant to section 36

- 4

- 129(b), finding fault on both sides. It appears that th e wri tten f ina l j udgment of d ivorce , prepared by counsel , contains an error r eci t ing th e incorrect subsect io n of th e statute as (a) instead of (b). Party
- prepared orders “ must accurately reflect the decisio n of the tri al court. ” Smith v. UHS of Lakeside , 439 S.W.3d 303 , 316 (Tenn. 2014). In order to represent14

th e tri al court’s decision, t h e final judgment of d ivorce shall be corrected to reflect that th e divorce was granted pursuant to Tennessee Code Annotated section 36

- 4

- 129(b)

.
**B .**  In any act io n fo r divorce where parent ing or custody i s at is sue, th e courts mu st include in th e final decree a permanent parent ing plan that designates one parent as th e “primar y resident ia l parent.” Tenn. Code Ann. § 36

- 6

- 404. See Hopkins v. Hopkins , 152 S.W.3d 447, 449 (Tenn. 2004). The permanent parent ing plan must include a resident ia l schedule, which is defined in sect io n 36

- 6

- 402(3) as “a wri tten plan for the pare nt ing and best interests of the child, including th e allo cat io n of p arent ing responsibilit ies and th e establishment of a Resident ia l Schedule.” T he resident ia l schedule “shall designate in which parent’s ho me each minor child will reside on given days of th e year. . . .” Tenn. Code Ann. § 36

- 6

- 402(5). A tri al court’s determinat io n of a p ost
- divorce parent ing plan fo r a minor child must be made upon th e basis of t he best int erest of

t he child. T enn. Code Ann. § 36

- 6

- 401. The d eterminat io n is not int ended to eit her reward or to punish parents, Earls v. Earls , 42 S.W .3d 877, 885 (Tenn. Ct. App. 2000), but rather to place th e child in an environment that will best serve its physical and emotional needs. Luke v. Luke , 651 S.W2d 219, 221 (Tenn. 1 983). “Tri al courts have broad discret io n in devising permanent parenting plans and designating th e primary

r esident ia l parent.” Burton v. Burton , No. E2007

- 02904

- COA

- R3

- CV, 2009 WL 302301, at *2 (Tenn. Ct. App. Feb. 9, 2009). Ho wever, those determinat ions mu st be made based on proof and applicable principles of l aw. Chaffin , 211 S.W.3d at 286
. This court reviews such determinations under an abuse of d iscret io n standard. Parker v. Parker , 986 S.W.2d 557, 563 (Tenn. 1999). A tri al c ourt abuses it s discretion when itf ails to co nsider th e applicable law and relevant facts in reaching it s decisio n. Konvalinka v. Chattanooga

-Hamilton Cnty. Hosp. Auth ., 249 S.W.3d 346, 358 (Tenn. 2008). An abuse of discret io n occurs when the tri al c ourt
. . . appl[ies] an incorrect legal standard, reaches an illogical resul t, reso lves th e case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice. Gonsewski v. Gonsewski , 350 S.W.3d 99, 105 (Tenn. 2 011). A c ourt al so is said to abuse it s di scretion “w hen th e tri al court’s ruling fa lls outside th e spectrum of rulings that might reasonably

r esul t fro m an application of

t he correct legal standards to th e evidence fo und in th e record.” Armbrister v. Ar mbrister , 414 S.W.3d 685, 692

- 93 (Tenn. 2013) (quoting Eldridge v. Eldridge , 42 S.W.3d 82, 88 (Tenn. 2001) ). Wife argues that th e tri al court erred in approving Husband’s proposed permanent parent ing plan providing equal parent ing time , erred in failing to mak e specific findings of f act as to th e statutory

f actors listed in 36

- 6

- 1 0 6(a), erred in not limit ing Husband’s parent ing time under 36

- 6

- 406(a)(2), and erred in designat ing Husband as primary resident ia l parent. Husband contends that th e c ourt did not approve Husband’s p lan but rather created it s own p la n. H e argues that th e record is totally devo id of a ny proposed p arenting p lan filed by Wife , despi

te Local R ule 28.05 and T ennessee C ode Annotated section 36

- 6

- 404 requir ing that each party

sh all fi le and serve a proposed parenting plan. Husband th us argues that Wife cannot15

now com plain about issues she waived in th e tri al court by fa iling to submit a proposed permanent parenting plan

. A ddi tionally, he contends that Wife agreed bef ore th e court to th e parent ing arrangement which th e court ult imately ordered. See O’Rour k e v. O’Rour

k e , No
. M2007

- 01833

- COA

- R3

- CV, 2010 WL 4629035 (Tenn. Ct. App. No v. 10, 2010). Wife admitted that she did not file a proposed p ermanent p arent ing p lan. Further, s he asserted that she did not want Husband’s parent ing time restricted or supervised:

Q. D o yo u still want [Husband] ’s parent ing time restricted or supervised” A. I wouldn’t say

that. Q. Okay . What would y ou say? A. ( Wit ness paused). I w ould say that if it’s [Husband] ’s parent ing time th en [Husband] should be using h is time to parent his children. As noted in Jacobsen v. Jacobsen , No. M2012

- 01845

- COA

- R3

- CV, 2013 WL 1400618, “T here are current ly two different statutes setting out non exclusive lists of

f actors fo r the tri al court to apply to h el p itr each th e goal o f determining a child’s best int erest.” Thompson v. Thompson , No. M2011

- 02438

- COA

- R3

- CV, 2012 WL 5266319, at *6 (Tenn. Ct. App. Oct. 24, 2012). Tennessee Code Annotated § 36

- 6

- 106, which applies to custody determinat io ns, and Tennessee Code Annotated § 36

- 6

- 404, which governs th e establishment of permanent parenting plans. See Burden [v. Burden] , 250 S.W.3d 899, ] 908 [(Tenn. Ct. App. 2007)] ; see also Thompson , 2012 WL 5266319, at* 6.
. . . The list of f actors co nt ained in [the two statutes] are “substant ia lly similar” and both permit th e court to allow fo r considerat io n of a ny oth er factors that th e court deems relevant. Thompson , 2012 WL 5266319, at *6. T hus, in mo st cases, th e analysis and resul t would be th e same regardless of which set of factors is applied. Id. Id. at *4. The fa ctors to be considered in adopting a permanent parent ing plan , as set out in Tennessee Code Annotated section 36

- 6

- 404(b), are:

(1) The parent’s abilit y to instruct, inspire, and encourage th e child to prepare for a life of service, and to compete successfully in th e soci et y that the child faces as an adult; (2) The relat ive strength, nature, and stabilit y of t he child’s relat io nship wi

th each parent, including whether a parent has taken16 greater responsibilit y fo r performing parent ing responsibilit ies relat ing to the daily needs o f th e child; (3) The willingness and abili ty o f each of

t he parents to facilitate and encourage a close and cont inuing parent
- child relat io nship between th e child and th e oth er parent, co nsistent wi th t he best int erests of the child; (4) Willful ref

usal t o attend a court
- ordered parent education seminar may be considered by the court as evidence of the parent’s lack of good fait h in these proceedings; (5) The di sposi

tion of e ach parent to provide th e child wi th f ood, clothing, medical care, education and other necessary care; (6) The degree to which a parent has been th e primary caregiver, defined as th e parent who has taken th e greater responsibilit y fo r performing parental responsibilit ies; (7) The lo ve, affect io n, and emotional ti es exist ing between each parent and the child; (8) The emotional

needs and developmental level of the child; (9) The character and physical and emotional fit ness of e ach parent as itr elates to each parent’s abili ty t o parent or th e welfare of the child; (10) The child’s int eraction and int errelationships wi th s iblings and wi th si gnificant adul

ts, as well as the child’s invo lvement wi th th e child’s physical surroundings, school, or other significant activit ies; (11) The importance of cont inuit y in the child’s life and the length of time the chil d has lived in a stable, satisfactory environment; (12) Evidence of

p hysical or emo tional abuse to th e child, to th e other parent or to any

other person; (13) The character and behavior of a ny oth er person who resides in or frequents the home of a pare ntand such person’s int eract io ns wi th the child; (14) The reasonable preference of the child if twelve (12) ye ars of age or older. . . .17 (15) Each parent’s em

ployment schedule, and the court may make accommodations consistent with those schedules; and (16) Any other factors deemed relevant by the court. Wife ci tes Tennessee Code Annotated section 36

- 6

- 106(a) as th e source of t he statutory factors that th e tri al court is obligated to consider . As noted above, t hose factors are similar, but not quite id entical , to th e statutory f actors set out in sect io n 36

- 6

- 404 fo r th e court to co nsider when creat ing a parent ing plan. The Tennessee Code Annotated section 36

- 6

- 106(a) factors are as fo llo ws: (1) T he strength, nature, and stabili ty o f th e child’s relat io nship wi th e ach parent, including whether one (1) parent has perf ormed th e maj ori

ty of parent ing responsibilit ies relat ing to the daily needs of the child; (2) E ach parent’s or caregiver’s past and potent ia l f or future performance of

p arent ing responsibilit ies, including th e willingness and abili

ty o f each of

t he parents and caregivers to facilitate and encourage a close and continuing parent
- child relat io nship between th e child and both of th e child’s parents, consistent wi

th th e best int erest of

t he child. I n determining the willingness of

e ach of t he parents and caregivers to facilitate and encourage a close and cont inuing parent

- child relatio nship between th e child and both of

t he child’s parents, th e court shall consider th e likelihood of

e ach parent and caregiver to honor and facilitate court ordered parent ing arrangements and rights, and th e court shall further consider any history of e it her parent or any caregiver denying parent ing time to eit her parent in vio lation of a c ourt order; (3) Ref usal to attend a court ordered parent education seminar may be considered by th e court as a lack of g ood fa it h effort in th ese proceedings; (4) T he di sposi

tion of e ach parent to provide th e child wi th f ood, clothing, medical care, education and other necessary care; (5) T he degree to which a parent has been th e primary caregiver, defined as th e parent who has taken th e greater responsibilit y fo r performing parental responsibilit ies; (6) T he lo ve, affect io n, and emotional ti es exist ing between each parent and the child; (7) The emotional

needs and developmental level of the child;18 (8) T he mo ral , physical, mental a nd emotional fit ness of e ach parent as it relates to their abilit y to parent the child . . . ; ( 9) T he child’s int eract io n and int errelat io nships wi th s iblings, other relat ives and step
- relat ives, and mentors, as well as th e child’s invo lvement wi

th th e child’s physical surroundings, school , or other significant activit ies; (10) The importance of cont inuit y in the child’s life and the length of time the child has lived in a stable, satisfactory environment; (11) E vidence of

p hysical or emo tional abuse to th e child, to th e other parent or to any

other person . . . ; (12) The character and behavior of a ny oth er person who resides in or frequents the home of a parent and such person’s int eract io ns wi th the child; (13) The reasonable preference of the child if twelve (12) ye ars of age or older

. . . ; (14) Each parent’s e mp lo yment schedule, and the court may make accommodations consistent with those schedules; and (15) Any other factors deemed relevant by the court. Tenn. Code Ann. § 36

- 6

- 106(a) . A s the court noted in Port v. Hatton , No. M2011

- 01580

- COA

R3

- CV, 2013 WL 865549 (Tenn. Ct. App. Mar. 6, 2013), “[w]hile th e tri al court is directed to consider the appropri ate factors in reaching it s decision , i t i s not requi

red to list each factor wi

th th e court’s concl

usion about how that facto r impacted th e custody d ecisio n.” Id. at *6. However, i f th e court has not set out specific findings of f act incorporating it s reasoning about th e statutory

f actors, thi s court may remand the case to the trial court to make such findings. Id. Wife con tends th e tri al court abused it s discretion in designating Husband th e primar y resident ia l parent when th e only factor th e court appeared to consider was th e possibilit y that Wife would relocate her residence

. Wife claims that this finding was contrary to th e evidence of record that Wife had permanent em ployment as a pharmacy manager, that her family resided in Hamblen Count y, and that she had no plans to relocate. Ho wever, Wife’s deposi tion testimony was int roduced attrial, in which she stated that she did not know if she had plans to mo ve th e children out of Hamblen County, th at she has thought about i t, that she has told people she plans to mo ve th e children, and that she will if allowed. S he testified she could work anywhere Walgreen’s had a store and that she wanted to “get on wi th my life and not have people constantly

. . . (wi

tness paused)

. . . having to deal wi th i ssues.” Husband responds that Wife’s testimo ny was both contradictory and evasive about her plans to relocate with the children.19

Wife further asserts that the tri al court erred in not limit ing Husband’s parenting time fo r domestic vio lence under Tennessee Code Annotated section 36

- 6

- 406(a)(2), which provides as fo llo ws: (a)

... a parent’s resident ia l time as provided in th e permane nt

parent ing plan or tem

porary p arent ing p lan shall be limited if iti s determined by th e court, based upon a prior order or other reliable evidence , that a parent has engaged in any o f th e fo llo wing conduct:

. . . . ( 2) Physical or sexual abuse or a patt ern of emotional abuse of

t he parent, child or of

a nother person living wi th that child as defined in § 36

- 6

- 601. The tri al c ourt’s duty

t o limit resident ia l time fo r th e abusing parent is mandatory under Tennessee law. See Carr v. Carr , No. M2017

- 00556

- COA

- R3

- CV, 2018 WL 1137109 , at *6 (Tenn. Ct. App. Mar. 1, 2018). See Burden , 250 S.W.3d at 913
. Husband contends that th e is sues Wife raises now on appeal are contrary to th e di rect agreement she stated at tri al on October 6, 2017 , which th e tri al c ourt “blessed” on th e second day of tri al: Mr. Stambaugh: Your Honor I think we’re in agreement that we . .

. that itw ill be a jo intc ustodi al si tuation wi

th f ift y/ fift y (50/50) time between the parents. Court : Okay. Mr. Stambaugh: It’s just a matter of trying to get the Plan down to where she can have some Saturdays and at least so me weekend time. Court : I’m supportive o f that. Mr. Stambaugh: We’re working on that four/three/four split.

*** Court : You want some weekend time? Mrs. Mangum: (Nodding affirmatively ) Court : Yo u want some weekend time? Mr. Mangum: Yes. Court : But you work a Saturday . I mean, I think I’ve been hearing that
. . . .20 Mr. Mangum: It’s

. . . it ’s

. . . it ’s flexible, my work on Saturdays. Court : Well why don’t you start out wi th every other weekend and th en add enough days in th e off

- week to make it f

ift y/ fift y. And th en Ms. Nan Buturff, who I like by th e way, I mean, I don’t necessarily disagree wi

th

... o r I mean, agree wi th h er on th e whippin g part but I really like her and I think she’s a good decent human being. Y ou know, she’s

... I think she’s got good int ent io ns and I think she wants th ese kids to be happy and flourish. S o I like her. B ut anyway, she seemed to think that any mo re than fo ur (4) days was a problem. But if we need to put a ... like a five (5) day

b lo ck every

o th er week or something in th ere just to get thi s done fift y/ fift y, are y ou good wi

th that? I mean, can yo u live wi

th that? Mr. Mangum: Yes sir I am. Court : And that ’s to both of you. I’m asking both of you. Mrs. Mangum: (No response) Court : What about you ma’am? Mrs. Mangum: Yes. The Court then stated: “Alr ight. Well I appreciate y ou all working it out. I mean, y ou all are the parents of these kids and you know what’s best. And I’m go ing to bless the agreement.” Husband further argues that Wife’s pleadings do not allege spousal abuse and do not request that Husband’s parenting be restricted and limited because of abuse. Husband also asserts that Wife’s f

actual a ccounts and allegations are inconsistent as well

. H e states that her behavior throughout the marriage and during the litigat io n are inconsistent with the way a victim would have reacted. He contends that Wife never made any reports of abuse to anyo ne, including her psychiatrist, did not call the police , and did not seek an order of protection unt il the divorce was filed. She dismissed her peti tion f or an order of

protection against Husband shortly af ter filing it. Wife contends that Husband sti pulated to the Uni

te d States District Court fo r the Eastern Di strict of

Tennessee that he had physically abused her. Because hit ting Wife was a vio lation o f Husband’s federal probat io n, to avo id having it r evoked, he filed a document in which he sti pulate d to “ slapping” Wife in the presence of the children. A s a condi tion of th e terms of

h is probation, he was required to participate in do mestic vio lence counseling.21

In O’Rourke v. O’Rourke , No. M2007

- 01833

- COA

- R3

- CV, 2010 WL 4629035 (Tenn. Ct. App. Nov . 10, 2010), it was argued that the mother had waived the abuse issue. We observed in O’Rourke , Mother would like us to read Tenn. Code Ann. § 36

- 6

- 406 as

abso lut ely barring any parent from being named as th e primar y resident ia l parent of

a c hild if that parent has any h istory of abuse, no matter th e degree of

abuse invo lved or it s remoteness in time. Both th e leg is lature and th e courts take domestic abuse very seriously, as th ey should. We do not believe, however, that th e legislature int ended th e statute to be applied so broadly as to deprive th e tri al

c ourt of i ts discretion to make wi th t he best int erest of

th e children, based upon th e factual s it uation that exists at the time of that determinat io n. 2010 WL 4629035, at *15. We fo und that the mo th er waived the issue of the application of 36

- 6

- 406 because she had repeatedly entered int o parent ing plans fo llo wing th e divorce permitt ing th e father to share custody

. Id. at*15. The court further noted that the mother made no assert io n of abuse fo llowing the filing of the divorce complaint. Id. T he appeal before us is an appeal fro m an init ial determinat io n of th e primary residenti al parent in which th ere was testimony at tri al regarding th e alleged abusive behavior. T h us, thi s case is not like O ’Rourke where th e mo th er attempted to apply th e statute ma ny years af ter th e divorce. We must address whether the trial court erred in failing to apply the statute. The trial court i s requi

red to consider evidence of physical or emotional abuse against th e other parent in determining th e custody and parent ing schedule fo r th e children. Burden , 250 S.W.3d at 913. A lt hough the trial court is e nt it le d to make credibilit y determinat io ns based on it s observat io n s in the courtroom:

[T]he court cannot simply disregard the weight of the evidence of a substant ive issue on th e basis of nothing mo re than it s own concl usory s tatements regarding a part y’ s character. W hether or not th e court believes [the father] is “t otally harmless” and “gent le,” iti s st ill requ ired to duly consider th e evidence that he committed abuse of

t he sort that wo uld affect th e outcome of t he case under §§ 36

- 6

- 406(a), 36

- 6

- 106(a) and 36

- 6

- 404(b). Id. at 914. As noted by

W ife, in naming Husband primary residenti al parent, the only factor that the tri al court appeared to consider was th e stable environment offered by Husband in th e marital ho me. T he court did not enumerate or discuss the statutory f actors as to the educat io n, character, and experi ence of

t he parents, th ei

r econo mic circumstances and employment schedules, and th ei r conduct. T here is no di scussio n of t he “best int erests of

t he children.” The tri al court did not me nt io n or discuss th e children’s ages, habi ts, me nt al and emotional make up; th e relat ive22

lo cat io n of the parents’ residences; the relationships between the children, caregivers, and family members; or the relat io nships between the parents and children. It made virtually no findings of fact regarding th e abuse allegat io ns but d esignated Husband as th e primary resident ia l parent. We must remand for the court to make appropriate findings as to the abuse issue in addit io n to all other relevant and appropri ate statutory f actors. C onsistent wi

th our standard of review, th is is a determinat io n mo re appropriately m ade by th e tri al c ourt. All oth er matters raised related to the permanent parenting plan are pretermitted.
**C.** Wife asserts that th e tri al c ourt erred in th e classification, valuat io n, and division o f marital assets
. She contends that th e tri al court fa iled to make sufficient findings of f act regarding the statutory

f actors for the equitable divisio n of marital property

. When equi

tably distribut ing th e marital property, th e tri al court must fir st id entify all property int erests at issue in th e divorce proceeding. See Keyt , 244 S.W.3d at 328. A ft er ident ifying th e property

int erests, th e tri al

s hould th en classify th e property a s ei th er marital or separate property
. Id. It is well settled that a tri al court mu st ident ify all assets of th e parties in divorce proceedings as ei th er separate or mar it al property p rior to equitably distribut ing th e marital property
. Id. The courts do not have th e authori ty t o make a distribut io n of s eparate property, so th e classification of t he property

i s an important th

resho ld matter. Id. So c la ssificat io n determinat io ns present questions of fa ct. Woodw ard v. Woodw

ard, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007). A ccordingly, a tri al c ourt’s classification of

p roperty a s ei ther se parate or mar it al will not be disturbed unless it is not supported by a preponderance of t he evidence. Id. Tennessee Code Annotated section 36

- 4

- 121(b)(1) (2017) define s marital property a s fo llo ws: (A) “ Mari tal property” means all real and personal property, both tangible and int angible, acqui red by ei th er or both spouses during th e course of

t he marriage up to th e date of t he final divorce hearing and owned by eit her or both spouses as of the date of filing of a com plaint for divorce

.... (B)(i) “Mar it al

p roperty” includes inco me fro m, and any increase in th e value during th e marri age of , property

d etermined to be separate property

in accordance wi

th s ubdivisio n (b )(2) if each party substantially contributed to i ts preservation and appreciat io n; (i i) “Marital property

” includes th e value of vested and unvested pensio n benefit s, vested and unvested stock option rights, reti rement, and oth er fr inge benefit ri ghts accrued as a resul t of em ployment during the marri age;23 (i ii) The account balance, accrue d benefi t, or other value of vested and unvested pensio n benefit s, vested and unvested stock option rights, retirement, and oth er fr inge benefits accrued as a resul t of em ployment prior to th e marriage, together wi th t he appreci at io n of t he value, shall

b e “separate property .” I n determining appreci at io n fo r purposes of this subdivision ( b)(1)(B)(iii), th e court shall utilize any reasonable method of accounting to attribute post marital appreciation to th e value of t he premari

tal benefits, even though cont ribut io ns have been made to th e account or accounts during th e marri age, and even though the contribut io ns have appreciated in value during th e marriage; provided, however, th e contribut io ns made during th e marriage, if made as a resul t of em ployment during th e marriage and th e appreciation attributable to th ese contribut io ns, would be “marital property .” When determining appreciation pursuant to this subdivision (b)(1)(B)(iii), th e concepts of comingling and transmutation shall not apply. (iv) Any wi

thdrawals fro m assets described in subdivision (b)(1)(B)(iii) used to acqui re separate assets of th e employ ee spouse shall be deemed to h ave co me fro m th e s eparate portion of th e account, up to th e total o f th e separate portion. Any wi thdrawals fro m assets d escribed in subdivision (b)(1)(B)(iii) used to acquire marital assets shall be deemed to have co me fro m th e mar it al

p ortion of

t he account, up to th e total o f th e marital portion; Tenn. Code Ann. § 36

- 4

- 121(b)(1)(A), (B) (emphasis added.)

“Separate prope rty, ” on the other hand me ans: (A) A ll real

a nd personal

p roperty o wned by a spouse before marri age, including, but not limited to, assets held in individual reti rement accounts (IRAs) as that term is defined in th e In ternal Revenue Code of 1986 (26 U.S. C.), 1 as amended; (B) P roperty

a cquired in exchange fo r property acqui red before th e marri age; (C) I ncome fro m and appreciat io n of p roperty o wned by a spouse before marriage except when characterized as marital property under subdivisio n (b)(1); (D) Property

a cquired by a spouse at any time by gif t, bequest, devise or descent; ... Tenn. Code Ann. § 36

- 4

- 121(b)(2) (A)

- (D) (2017).24

The Tennessee Supreme Court has previously determined that th e appreciation of a reti rement accoun

t fu nded during th e marri age is def erred com

pensat io n and is marital propert y subject to divisio n during divorce. See Langschmidt , 81 S.W.3d at 749 (“Ret ir ement benefit s accrued during th e marriage clearly are marital property under Tennessee law.”). H owever, our Supreme Court a lso h eld in Langschmidt that “the appreciat io n of a s pouse’s IRA during th e marri age is separate property when fu nded completely wi th p remari tal earnings and absent substant ia l contribution by the other spouse to the preservat io n and appreciat io n o f th e IRA.” Id. at 742. T he Supreme Court th ereafter clarified it s previous ho ld ing in Langschmidt and em phasized that th e IRAs at issue in Langschmidt were not a product of t he spouse’s em ployment, did not involve deferred com pensat ion, and had been funded ent i rely by premari

tal funds. Snodgrass v. Snodgrass , S.W.3d 240, 255 (Tenn. 2009). The Court in Snodgrass further held “t hat 401(k) accounts held th rough a spouse’s em

ploy er are ‘ret ir ement or other fr inge benefit rights relating to emplo yment.’ ” Id. “O nce the parties’ mari

tal property h as been classified and valued, the trial court’s goal

is to di vide the marital property

in an essentially equi

table manner.” Ow

ens v. Ow ens , 241 S.W.3d 478, 489

- 90 (Tenn. Ct. App. 2007) (cit ing Tenn. Code Ann. § 36

- 4

- 121 (a)(i)). “A division o f marital property

i s not rendered inequitable simply because iti s not precisely equal , or b ecause each party did not receive a share of every piece of mari tal property .” Id. at 490. “The approach to dividing a marital estate shou ld not be mechanical, but rather should entail carefully weighing th e relevant f

actors in Tenn. Code Ann. 36

- 4

- 121(c) in light of th e evidence that the parti es have presented.” Id. “Trial courts have broad discret io n in fashioning an equi table division o f marital property, and appellate courts must accord great weight to a tri al court’s divisio n of t he marital property .” Id. In mak ing equi

table division

o f marital property, th e court shall consider all relevant factors i ncl uding: (1) The duration of th e marriage; (2) The age, physical and mental h eal th , vocational skills, em ploy abili ty, earning capacit y, e state, financia l liabilit ies and financial needs of each o f th e parties; (3) T he tangible or int angible contribut io n by one (1) party to th e edu cation, training or increased earning power of the other party; (4) T he relat ive abili

ty o f each part y fo r future acquisit io ns of capi tal assets and income; (5)(A) The contribut io n of e ach party

t o th e acqui si

tion , preservat io n, appreciat io n, depreciation or dissi pation of

t he marital or separate property, including th e contribut io n of a p art y to th e marri age as ho me maker, wage earner or parent, wi th t he25 contribution of a party as ho me maker or wage earner to be given th e same weight if each party h as ful filled i

ts role; (B) F or purposes of

t his subdivisio n (c)(5), di ssipat io n of a ssets means wasteful expenditures which reduce th e marital property available fo r equi

table distributions and which are made fo r a purpose con

trary to th e marriage ei

th er befor e or af

ter a com plaint fo r divorce or legal separation has been filed. (6 ) The value of the separate property of each party; ( 7 ) The estate of each party at the time of the marriage; (8 ) T he economic ci

rcumstances of

e ach part y at th e time th e divisio n of property

i s to become effective; ( 9 ) The tax consequences to each part y, c osts associated wi th t he reasonably fo reseeable sale of t he asset, and other reasonably fo reseeable expenses associated with the asset; ( 10 ) The amount of

s oci al securi

ty b enefi ts available to each spouse; and (1 1 ) S uch other factors as are necessary to consider th e equi ti es between the parties. Tenn. Code Ann. § 36

- 4

- 121(c)

. It i s apparent to thi s court that the tri al c ourt struggled might ily wi th th ese parti es and the case. In the absence of sufficient fa ct findings reflecting the property valuat io ns, i

t i s difficult for us to discern th e rationale behind th e property d ivisio n and whether iti s equi table. During th e reconsideration of

thi s case, th e tri al

c our t i s further directed to mak e specific fact findings as to th e property issues pursuant to th e f actors listed in 36

- 4

- 121(c).

**D.** Wife seeks an award of

attorney f ees and costs for this appeal. L i ti gants are generally requi red to pay thei

r own attorne y fe es unless a statute or contract provi sion provides otherwi se. John Kohl & Co., P.C. v. Dearborn & Ewing , 977 S.W.2d 528, 534 (Tenn. 1998). An award of attorney f ees is appropriate in a domestic relat io ns case in th e fo llowing circumstances: “ (1) awards to economically disadvantaged spouses as addi tional spousal support in divorce proceedings; (2) awards to spouses who must return to court to enforce child support obligations; and (3) awards to spouses seeking to enforce an MDA when th e MDA contains a provision f or attorney ’s fees.” Elliott v. Elliott , 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (footnotes excluded). When an appellate court considers a request fo r appellate attorney f ees, th e court26

considers “the request ing part y’ s abilit y to pay, the re questing part y’ s success on appeal, whether th e appeal was taken in good fa it h, and any oth er relevant equitable factors.” Culbertson v. Culbertson , 455 S.W.3d 107, 158 (Tenn. Ct. App. 2014) (ci ting Moran v. Willensky , 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010)). A d ecision to award attorney f ees on appeal is wi

thin the “sound discretion” of

t he appellate court. Luplow v. Luplow, 450 S.W.3d 105, 120 (Tenn. Ct. App. 2014). Husband asserts that thi s appeal is frivolous and not in good fai th . A ccordingl y, he seeks an award of

h is attorney’s fees and costs from both Wife and Amici Curiae under T ennessee C ode Annotated section 27

- 1

- 122 , which allows for an award of attorney’s fe es when an appeal is fr ivo lo us or taken solely f or delay . Despite th e fa ct that w e do not find Wife to be ent it led to an award of attorney fees fo r thi s appeal , we do not agree wi th Husband that the appeal by Wife was frivolous and not in good fait h. Taking all th e relevant factors into account, we decline to award attorney f ees on appeal to ei th er party
. **V. CONCLUSION** For th e fo regoing reasons, we v acat e th e tri al court’s judgment except as to th e divorce

. This case is remanded fo r the tri al court to make appropriate findings of f act and concl

usion s of law that consider all the relevant and applicable statutory f actors
.

_________________________________ JOHN W. MCCLARTY, JUDGE