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. E2018-00024-COA-R3-CV

___________________________________

In this appeal, the wife challenges the trial court’s designation of the husband as the primary 

residential parent of the minor children, the crafting of the parenting plan, and the marital 

property determinations. The trial court neglected to make findings under the appropriate 

statutory provisions. We vacate the judgment except as to the divorce and remand with

instructions to make findings of fact and conclusions of law that consider all the relevant and 

applicable statutory factors.

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

Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J.,

and D. MICHAEL SWINEY, C.J. joined.

C. Scott Taylor and Margo J. Maxwell, Knoxville, Tennessee, and Wayne R. Stambaugh, 

Morristown, Tennessee, for the appellant, Laney Celeste Mangum.

Douglas R. Beier, Morristown, Tennessee, for the appellee, Larry Mark Mangum.

Cynthia A. Cheatham, Nashville, Tennessee, and Sylvia O. Tsakos, Washington, D.C., Amici 

Curiae.

OPINION

I. BACKGROUND

This divorce involves a tumultuous marriage of six years between professional parents

who both worked full-time. The couple have two young sons (ages 4 and 6 at the time of the 

trial).

When the parties began their relationship, Laney Celeste Mangum (“Wife”) was 30 years 

old and a pharmacist. Larry Mark Mangum (“Husband”) was 55 years old and the sole owner of 

04/24/2019
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an established veterinary practice in Hamblen County. Husband also owned several farms with

cattle and livestock. Additionally, he owned real property and various assets related to his cattle 

business. Husband’s gross income for 2016 was $366,209; Wife’s income for the same year was 

$134,063.

In June 2010, before the couple married, Wife discovered that she was pregnant. The 

parties’ first child, Samuel, was born on January 29, 2011. In order that Wife could continue 

working as a pharmacist after the birth of her son, her mother retired from her job to become a 

full-time caretaker for the child. In December of that year, just before Samuel’s birth, Husband 

purchased a farmhouse and acreage at 1735 Needmore Road, Whitesburg, Tennessee (“the 

Needmore Road property”). The Needmore Road property was purchased by Husband as sole 

owner, although Wife notes that it was refinanced with both Husband’s and Wife’s financial 

information. While waiting on remodeling of the farmhouse, the parties and Samuel lived in a 

property owned by Wife’s parents at 1816 Leia Drive in Morristown (“the Leia Drive property”).

The parties were married on November 26, 2011. This was the first marriage for Wife 

and the second marriage for Husband. Less than a year later, on August 6, 2012, Husband was 

found guilty in federal district court of the felony of structuring funds to avoid filling out a 

currency transaction report. He was ordered to serve five years on probation, perform 350 hours 

of community service, pay a $50,000 fine, and serve two 30-day periods of intermittent 

confinement. The following year, the parties’ second child, John Mark, was born on April 26, 

2013.

The parties separated on July 1, 2016. Wife filed for an order of protection, and she and 

the children moved back into the Leia Drive property. Six days later, Husband filed a complaint

for divorce, requesting that he be designated primary residential parent with equal co-parenting 

time on a four/three day split. The trial was held on October 5-6, 2017. 

Counselor, Nan Buturff, a licensed clinical social worker, testified at trial that she had 

met with the children and observed their aggressive behavior toward Wife. She discussed the 

differing disciplinary styles of the parents and the Mother’s use of time out versus Father’s 

corporal discipline. Ms. Buturff related that she does not believe in corporal punishment; in her 

view, it is ineffective, does not teach respect, and it only humiliates and angers a child. Ms. 

Buturff opined that “corporal punishment needs to be a thing of the past” in regard to these 

children. She admitted that she was unaware of Wife’s psychiatric history, if any.

Husband testified that Wife worked all the time, stayed in bed when she was home, and 

did not help much with the children. According to Husband, he hired maids, cooks, and 

caretakers to help him attend to the boys. He stated that he spends his mornings with the 

children and takes them with him to the clinic. Husband further related that he had raised his 

two older children from his first marriage in the same environment. He noted that one of them is 

a veterinarian and the other is a teacher.

Husband opined that Wife’s parents were a big problem in the marriage, always wanting 

to take control of the children. He observed that Wife loves her sons but cannot take care of
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them. Rather, Wife relinquishes the care of the children to her parents and her friend, Lauren 

Rice.

As to discipline, Husband testified that he would spank the children if they needed it, but 

because his sons were aware of that fact, he has never had a problem with them. He claimed to 

have never “switched” the boys. According to Husband, his sons have “a problem sometimes 

with focus. If I tell them to do something, they do it, if I tell them not to do something, they 

don’t do it.” Husband testified regarding his normal daily routine with the children, observing 

that he fixed them breakfast, took them to the farm, and to the library and other activities. He 

related that he often fed them dinner and prepared them for bed.

Husband expressed his belief that it is important to raise the children in a Christian 

environment, and he preferred that the children get Christian counseling if they needed any 

therapy. He disagreed with Ms. Buturff about the proper ways to discipline children, and he 

observed that Wife turned every little scratch, bump, or bruise on the boys into an allegation of

abuse or neglect.

Husband’s three sisters, Karen Rochelle, Kathy Angle, and Rebecca Mason, all opined 

that Husband “is a very good father.” They observed that the boys behave with their father and 

respect his discipline. They recalled that Wife made statements to them that she is not able to 

take care of the boys without help, that she would rather be at work than taking care of the 

children, and that she cannot handle them alone. 

Lara Miller, Husband’s veterinary office manager for 15 years, testified that the children 

come to the clinic with Husband, enjoy being there, and are well behaved when they visit. Ms. 

Miller opined that Husband is “a very good dad” and a “very good boss.” She stated that Wife 

had commented in front of the boys that she did not want to be a mother and did not know why 

people wanted to be with their kids. According to Ms. Miller, the comment brought near tears to 

the eyes of Samuel. She further related that Wife had on numerous occasions stated that she was 

having problems with the children and could not handle them. Ms. Miller noted that on one 

occasion, Wife, very upset, related that she was tired of being a mother, that she did not want to 

be around her boys, and that she did not know why people wanted to stay home on their day off 

to be with children. On other occasions, she came to the clinic and would go into the lounge, 

slam the door, and state that she was tired and did not want to be a mother anymore. 

Husband has two adult daughters from his first marriage. One of them, Leann Evans,

testified that she frequently saw her father with the two boys. She observed that the children 

respect Husband and noted that they run up to him, grab him, hug him around the neck, and grin 

from ear to ear. She related that the boys are very well-behaved with Husband, who is a “very 

good father” to his sons. She recalled that she was close to Wife before the separation and that 

Wife would confide to her that she was very stressed by being a mother. According to Ms. 

Evans, Wife stated, “She’d rather be at work twenty...twenty-four hours a day, seven days a 

week...than to be home with her boys, that she did not know how I could do it. She could never 

do it.” Ms. Evans also observed that she rarely saw Wife caring for the children and that Wife 

usually was in bed until twelve or one o’clock on the days Ms. Evans was there. Husband would 

be the one to make breakfast for the children, get them dressed, and get them going.
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Wife testified that the children were often aggressive, violent, and out of control when 

they were with her. In addition, Wife alleged domestic abuse. According to Wife, Husband hit

her in October 2015 and January 2016. As to the October 2015 incident, Wife recalled that the 

couple had a disagreement about a woman moving into one of Husband’s properties:

A. . . . I didn’t actually punch a Capri Sun on his head but I did

squirt it towards the bed. It might have got in his eye but I never 

touched him. And I went into the bathroom and I don’t remember 

how it all happened, if he was in the shower afterwards or before it 

but it was just like just the things that he was saying to me and the 

way that he talked to me and . . . I was sitting down in my chair 

with my makeup vanity open and there’s . . . a little pull-out 

drawer beside of me and ... (witness paused) ... he came up to me 

and his hand was flat and it ... he pushed me out like that right 

there.

Q. You need to describe it for the Court Reporter and it’s not 

being videotaped. How and where he hit you?

A. Like on my neck, with open flat hand.

Q. What side?

A. Oh gosh . . . (witness paused) . . . so I was sitting over like that 

way and so he would have hit me on this side.

Q. So would that be your right side or your left side?

A. My left side.

Q. Alright. Then what happened after that?

A. (Witness paused) I fell to the floor. (Witness paused) And I 

remember laying there and he came over there and sit over top of 

me and said “I never did this to you before because I respected 

your father. But this is my house and I’ll do what I want to.”

Q. Did that scare you?

A. Yes.

Regarding the January 2016 incident, Wife testified as follows:

A. We had went to church at First Baptist and left. We had the 

boys with us and we were driving...I was driving my parents’ car. 
5

. . . I think that Larry had asked if the boys wanted to go to Taco 

Bell and Samuel said he wanted chicken. And so we went over to 

KFC and got in line in the drive-thru and we ordered . . . . Larry 

had left his truck at the clinic that morning and . . . we were going 

to go back by the clinic and he was going to go to work and I was 

going to go to his parents’ house with the boys. And we got up 

there to pay for the chicken and I didn’t have my purse because . . .

my purse was in the trunk with my phone. And he. . . I asked him 

for some money. And he said, “No. You have all the money. You 

can pay for it.” And I just looked at the lady in the drive-thru and 

said, “Well we’ll be back.” And I pulled out on the road and took 

off towards the clinic and I remember I didn’t say one...not one 

single word. I’ve got a habit of ... (witness paused)...I just don’t 

say anything. And on the way from the mall going down towards 

the clinic I just remember thinking to myself “this is what my kids 

are going to remember, him talking 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 the car and as he goes ... I had locked the doors and 

he opened the door, went in through the door to open it up or went 

to grab John Mark’s door and at that time his door was still open 

and . . . I was putting the car in reverse and he jumps on...grabs a 

hold of the doorframe, like where the window is and swings back 

into the car and hit me.

Q. Hit you how?

A. Like swung over with his arm.

Q. Did he black your eye?

A. No.

Q. What did he do to your lip?

A. It was busted.

Q. Okay. Did you run over his foot?

A. No.
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Q. Do you remember running over anything?

A. No.

Husband responded that he did not abuse Wife and that the pictures she introduced 

showing bruises on her thigh and arm occurred in a 2015 fall. According to Husband, Wife 

squirted a drink in his face as he was lying in bed asleep, smacked him on the head with the 

carton, and then threw a porcelain platter at him. He claimed that when he jumped up, Wife ran 

into the bedroom, tripping over a chair and hitting the vanity table with her side. Husband 

asserted that he did not touch Wife. Three or four days later, when he saw her taking pictures of 

her bruises, he asked her, “Are you insinuating that I put those on you?” She replied, “Well, you 

made me do it.” Husband testified further: 

A. She told me that she had problems in the very first incident 

when she threw the Kool-Aid on me. She said, “I’m sorry. Please 

forgive me . . . I’m . . . I’m crazy. This is the way I am.” And I 

said, “No, you’re not crazy. . . .” And she said, “No, really, I’m 

certifiable.” I said, “What are you talking about?” And she said, 

“I see a psychiatrist.” And she said...she says, “I have problems 

with depression.” And then she says, “I could really kill somebody 

and get by with it . . . .” Well as time went on she continued to tell 

me the very same thing, that she had mental conditions, that she 

suffered from depression, and that she had suicidal tendencies, that 

she had thought about killing herself. I said, “Hey you don’t need 

to be doing that.” I said, “If you are then you need to be on some

medications.” Something along those lines. So there was other 

times that she would come back in though and she kept 

apologizing after the incident. For example, the next time that she 

had . . . started on me, I put my hands up like this. Well she 

grabbed my fingers and . . . cause she was beating me over the 

head and she bent my fingers back. And there again, I never laid a 

hand on her. I was just protecting myself. And then she came 

back and she would apologize. And pretty soon it got to the point 

where she was doing it without apologizing. So she was getting 

used to, you know, that type of activity.

Q. So you continued to live with a woman you say was abusive to 

you?

A. Right.

Q. What happened, the incident that led to her driving the car out 

into Morris Boulevard?
7

A. Okay. We had gone to church that day . . . . And we went to 

pick up something to eat. We normally try to pick up chicken or 

some other something and take it over to my parents’ house on 

Sunday. That’s usually their day. And we went by to get it at 

Bojangles. Every time in the past year I had been paying for 

everything and we pulled up to the window and I said, “Honey go 

ahead and take care of this, okay?” And she said, “Well I’m not 

going to pay for it.”

Q. Was she driving?

A. She was driving. And she was at the window. Well they got 

the stuff together and she drove out. She left the chicken place. 

We pulled into the parking lot at the office and she started. I said,

“Boys come on let’s get out.” I said, “I’m going to have to take 

you and get you something to eat.”

Q. Oh she didn’t buy the food?

* * *

A. No she drove off leaving it there in the window. And then she 

started screaming and ranting and raving and the kids were in the 

backseat . . . and I said, “Come on boys.” I said, “Let’s go.” Well 

as I stepped out of the car I had the door open and she put it in 

reverse and mashed on the gas. Well as she did that door knocked 

me down and [the car] ran over my foot. Well I pulled myself . . . 

was able to pull myself back and get up into the car and she was 

screaming and carrying on and she’d pulled out in the middle of

Morris Boulevard . . . . I said, “You’re going to have to get this car 

out of the road.” I said, “People’s going to come up here and 

they’re going to hit us and could possibly kill us and the children 

that’s in the backseat.” She was actually blocking the lane of 

traffic. And so I put my foot over the console, put the foot on the 

brake, put the car in reverse, mashed on the gas, backed it up, put it 

back in park, turned it off and pulled the key out. And the 

exchange where she got her lip hit there in the middle of it was in 

the parking lot before we pulled out into the . . . into the traffic ....

Q. What happened?

***

Q. If you didn’t hit her lip what happened?
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A. Well she . . . when she was screaming . . . when she quit 

screaming she just kind of looked then and then I got the boys out 

and took them into the clinic and then she got out and called her 

mother and then her mother came and she said, “This doesn’t need 

to be going on in front of these boys.” Well it didn’t need to be 

going on period. But that . . . that was the incident. But then two 

or three . . . I don’t know how much longer, a few weeks, or so, I 

don’t know exactly the time period but I got a call from my 

probation officer and the probation officer says, “I understand that 

there’s been a domestic violence . . . that you . . . that somebody 

had seen you smack your wife in front of the . . . or punch your 

wife . . . in the middle of Morris Boulevard.” I said, “That’s not 

true.” I explained to [probation officer] what had happened and 

that she ran over my foot and ran over me in the parking lot and I 

got back in and in the altercation she got hit in the lip.” And . . . 

well she says, “I’m going to recommend that you 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 for no reason apparent 

to you that your wife went off into dramatic fits?

A. Yes.

***

A. And there was one situation that she went off and . . . and 

see that was in January. And then we had a good period of time in 

the spring but then she started getting jealous over another . . . a 

girl that was working for me. And it wasn’t but like an 18 year old 

girl. And she said, “Well you took her out and . . . .” See 

sometimes I have to go out and pull blood on horses for Kargans 

testing. So I’ll take out a secretary or one of the girls and they’ll 

fill out the paperwork while I actually do the vaccinating and 

pulling the blood. And then we’ll go back to the . . . back to the 

office and get it ready for the lab. And she says, “Well I 

understand you took out . . . you went out and . . . it doesn’t look 

good for you to be taking a girl out with you on a call.” And I 

said, “Listen, if I wanted to have anything to do with another girl I 

would have . . . I wouldn’t have married you. I could have done it 

a long time ago.” I said, “I don’t know why you don’t have the 

confidence and security in me but . . . .” [A]nyway, that was one 

of the situations . . . .
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Wife and her mother alleged injuries to the children during the time that they were under 

the supervision of Husband or Husband’s family members acting as caretakers. When Husband 

worked, the children were cared for by his family or taken to the clinic where he and his staff 

watched them. Wife further alleged that Husband’s sister had abused the oldest son by hitting 

him with a switch. During questioning about her abuse allegations toward the children, Wife 

testified:

A. Yeah. I mean, it’s like when they’ve come home it’s like 

they’re constant . . . there’s constant injuries and then like the 

motorcycle burn and John Mark had bruises on his back too from 

falling off the pony. (Witness paused)

Court: Well that’s pretty normal boy stuff I think, you know, 

based on my experience. So, you know, if you’ve got some 

evidence that somebody’s abusing them or anything, you know 

then . . . and I’m talking more than just giving them a good 

whipping. I’m talking about some sort of abuse. I’ll listen to it.

The trial court noted in August 2017 how difficult the course of the case had been:

Look this is the biggest mess I’ve ever seen in my life. It’s a 

terrible mess and the two of you all are going to come out of this 

and be about the same way you were before but you’ve got these 

two little boys and they are going to be the casualties of this war 

you’re fighting.

In a final judgment rendered on December 7, 2017, the trial court ordered the parties 

divorced and approved a parenting plan that granted the parties equal co-parenting time with

joint decision making and Husband as the primary residential parent. The trial court awarded 

Wife all of her interest in her 401(k) and her personal bank account. She was allowed to retain 

the $9,700 in cash of Husband’s property and was awarded all interest in her personal property 

listed. Husband was awarded all interest in the marital residence, his IRA, his business account, 

personal accounts, livestock, and an antique car. Husband was held solely responsible for the 

line of credit. Additionally, he was awarded as his sole property the remaining real property, 

personal property, and farm equipment. Husband continued to live at the Needmore Road 

property, which was awarded to Husband as his separate property, although the court did award 

Wife $25,000 for her share of the increased value as a result of improvements. In the trial

court’s memorandum opinion, the court “believe[d] that the increase in value or the increase to 

the marital estate during the marriage on the marital home is the equivalent of one hundred 

thousand dollars ($100,000.00).” “The court found that ‘the Wife’s share of the cattle is twentyfive thousand dollars ($25,000.00).” The court opined that he believed he was awarding Wife a 

bit more than 50% of the marital estate:

I find that it’s just a wash. There were some things accrued or 

increased during the marriage but they were sort of accrued on 

both sides so the Court doesn’t believe that it would be equitable 
10

for any money to change hands. The Court’s calling it a wash. 

And that favors the Wife because she gets to retain her sizable 

401K.

***

I believe, the way I think about the numbers, that I have favored 

the Mother a little bit in the number and it’s probably not up to 

sixty forty (60/40) but it’s more that she gets more than fifty 

percent (50%) I guess of whatever accrued during the marriage 

because I’m just knocking her whole retirement fund off to her. 

But if you look at it and you become convinced that I’ve given her 

less than fifty percent some way or other then bring it back before 

the court in a Motion if you don’t mind and let me at least hear 

what you’re thinking, okay.

As to the parenting plan, the court observed that it was “troubled . . . because nothing I try to do 

for you guys seems to work.” The court continued:

I think Mom there’s a lot of testimony from friends of yours and 

insinuating on the record that you were planning on moving 

somewhere. And if that’s what is best for you . . . the Court 

absolutely is not telling someone they can or cannot move. The 

father is anchored. I know the kids will have a roof over their head 

there. And for that reason the Court is choosing to make the Father 

the primarily residential parent. But the main reason I’m doing 

that is because of this indication that you may move . . . .

But I am going to try to split the time with you two as close to 

equal as I can get.

***

Mr. Stambaugh: . . . [A]re we talking a four/three (4/3), three/four 

(3/4) that would alternate a fifty/fifty (50/50) schedule like Nan 

Buturff suggested in her testimony?

Court: Yeah that’s what I want to do. Yeah.

***

Court: . . . I’m making the Father the primary custodian because if 

she decides to move somewhere I want her to have to give him the 

notice and I want the case to have to come back before me and me 

hear it again. . . . But she testified from the witness stand that she 
11

had no immediate plans to go anywhere although maybe in her 

heart of hearts she’d like to . . . .

After the court’s ruling, Wife timely filed her appeal.

II. ISSUES

The following issues are raised by Wife in this appeal:

A. The trial court erred in declaring the parties divorced pursuant 

to Tennessee Code Annotated section 36-4-129(a), as the parties 

did not jointly stipulate to grounds to divorce.

B. The trial court erred in approving and ordering Husband’s 

permanent parenting plan providing equal parenting time.

(1) The trial court erred in failing to make specific findings 

of fact as to the statutory factors in Tennessee Code 

Annotated section 36-6-106(a).

(2) The trial court erred in not limiting Husband’ parenting 

time for domestic violence under Tennessee Code 

Annotated section 36-6-406(a)(2).

(3) The trial court erred in designating Husband primary 

residential parent under Tennessee Code Annotated 

section 36-6-406(a)(2).

(4) The trial court erred in ordering that (1) the parents find a 

“Christian counselor” for the children and requiring that 

(2) the children remain in Wednesday night church 

activities at First Baptist Church.

C. The trial court erred in its classification valuation, and division 

of the parties’ marital property.

(1) The trial court erred in failing to consider the factors 

listed in Tennessee Code Annotated section 36-4-121(c) 

in making its equitable division of marital property.

(2) The trial court erred in its calculation of Wife’s share of 

the marital estate. 

D. Is Wife entitled to attorney’s fees and litigation expenses on 

appeal.
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III. STANDARD OF REVIEW

This case was tried without a jury. We review the findings of fact made by the trial court 

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

contrary. Tenn. R. App. P. 13(d); In re C.K.G., 173 S.W.3d 714, 731 (Tenn. 2005). The trial

court’s conclusions of law, however, are reviewed de novo and “are accorded no presumption of 

correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

Parenting and visitation arrangements are recognized as “among the most important 

decisions confronting a trial court in a divorce case.” Chaffin v. Ellis, 211 S.W.3d 264, 286 

(Tenn. Ct. App. 2006). In making such decisions, the needs of the child are paramount, and the 

desires of the parent are secondary. Id. While trial courts have broad discretion to make 

parenting decisions, their determinations must be made based upon proof and applicable 

principles of law. Id. Given the discretion involved and the fact that the decision often hinges 

on witness credibility, our court has stated that “appellate courts are loathe to second-guess a trial

court’s conclusion.” Id.

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

divorce, the Tennessee Supreme Court has elucidated the applicable standard of appellate review 

as follows:

Th[e] Court gives great weight to the decisions of the trial court in 

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

court’s decision unless the distribution lacks proper evidentiary 

support or results in some error of law or misapplication of

statutory requirements and procedures.” Herrera v. Herrera, 944 

S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such, when dealing 

with the trial court’s findings of fact, we review the record de novo 

with a presumption of correctness, and we must honor those 

findings unless there is evidence which preponderates to the 

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

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Because trial courts 

are in a far better position than this Court to observe the demeanor 

of the witnesses, the weight, faith, and credit to be given witnesses’ 

testimony lies in the first instance with the trial court. Roberts v. 

Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991). 

Consequently, where issues of credibility and weight of testimony 

are involved, this Court will accord considerable deference to the 

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

(Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery 

Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial court’s 

conclusions of law, however, are accorded no presumption of

correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 

(Tenn. 2002).
13

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

assets as marital or separate are questions of fact. Bilyeu v. Bilyeu, 196 S.W.3d 131, 135 (Tenn. 

Ct. App. 2005).

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

identify all of the assets possessed by the divorcing parties as 

either separate property or marital property before equitably 

dividing the marital estate. Separate property is not subject to 

division. In contrast, Tenn. Code Ann. § 36-4-121(c) outlines the 

relevant factors that a court must consider when equitably dividing 

the marital property without regard to fault on the part of either 

party. An equitable division of marital property is not necessarily 

an equal division, and § 36-4-121(a)(1) only requires an equitable

division.

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

Apr. 16, 2010) (internal citations omitted). See Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. 

App. 2001) (holding that appellate courts reviewing a distribution of marital property “ordinarily 

defer to the trial judge’s decision unless it is inconsistent with the factors in Tenn. Code Ann. § 

36-4-121(c) or is not supported by a preponderance of the evidence.”).

IV. DISCUSSION

A.

Tennessee Code Annotated section 36-4-129 provides:

(a) In all actions for divorce from the bonds of matrimony or legal 

separation the parties may stipulate as to grounds and/or defenses.

(b) The court may, upon stipulation to or proof of any ground for 

divorce pursuant to §36-4-101, grant a divorce to the party who 

was less at fault or, if either or both parties are entitled to a 

divorce, declare the parties to be divorced, rather than awarding a 

divorce to either party alone.

At the final hearing, the trial court stated: “I’ve heard enough already to know that 

there’s probably fault on both sides. I’d be inclined to declare them divorced pursuant to 36-4-

129(b), which is a statute that says if I hear fault on both sides I can just declare them divorced. 

So I’d be inclined to do that.” In the findings of the court, it declared the parties divorced 

pursuant to section 36-4-129(b), finding fault on both sides. It appears that the written final 

judgment of divorce, prepared by counsel, contains an error reciting the incorrect subsection of

the statute as (a) instead of (b). Party-prepared orders “must accurately reflect the decision of the 

trial court.” Smith v. UHS of Lakeside, 439 S.W.3d 303, 316 (Tenn. 2014). In order to represent 
14

the trial court’s decision, the final judgment of divorce shall be corrected to reflect that the 

divorce was granted pursuant to Tennessee Code Annotated section 36-4-129(b).

B.

In any action for divorce where parenting or custody is at issue, the courts must include 

in the final decree a permanent parenting plan that designates one parent as the “primary 

residential parent.” Tenn. Code Ann. § 36-6-404. See Hopkins v. Hopkins, 152 S.W.3d 447, 449 

(Tenn. 2004). The permanent parenting plan must include a residential schedule, which is 

defined in section 36-6-402(3) as “a written plan for the parenting and best interests of the child, 

including the allocation of parenting responsibilities and the establishment of a Residential 

Schedule.” The residential schedule “shall designate in which parent’s home each minor child 

will reside on given days of the year. . . .” Tenn. Code Ann. § 36-6-402(5). 

A trial court’s determination of a post-divorce parenting plan for a minor child must be 

made upon the basis of the best interest of the child. Tenn. Code Ann. § 36-6-401. The 

determination is not intended to either reward or to punish parents, Earls v. Earls, 42 S.W.3d 

877, 885 (Tenn. Ct. App. 2000), but rather to place the child in an environment that will best 

serve its physical and emotional needs. Luke v. Luke, 651 S.W2d 219, 221 (Tenn. 1983).

“Trial courts have broad discretion in devising permanent parenting plans and 

designating the primary residential parent.” Burton v. Burton, No. E2007-02904-COA-R3-CV, 

2009 WL 302301, at *2 (Tenn. Ct. App. Feb. 9, 2009). However, those determinations must be 

made based on proof and applicable principles of law. Chaffin, 211 S.W.3d at 286. This court 

reviews such determinations under an abuse of discretion standard. Parker v. Parker, 986 

S.W.2d 557, 563 (Tenn. 1999). A trial court abuses its discretion when it fails to consider the 

applicable law and relevant facts in reaching its decision. Konvalinka v. Chattanooga-Hamilton 

Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008). An abuse of discretion occurs when the 

trial court . . . appl[ies] 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. 

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A court also is said to abuse its 

discretion “when the trial court’s ruling falls outside the spectrum of rulings that might 

reasonably result from an application of the correct legal standards to the evidence found in the 

record.” Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013) (quoting Eldridge v. 

Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). 

Wife argues that the trial court erred in approving Husband’s proposed permanent 

parenting plan providing equal parenting time, erred in failing to make specific findings of fact

as to the statutory factors listed in 36-6-106(a), erred in not limiting Husband’s parenting time 

under 36-6-406(a)(2), and erred in designating Husband as primary residential parent.

Husband contends that the court did not approve Husband’s plan but rather created its 

own plan. He argues that the record is totally devoid of any proposed parenting plan filed by 

Wife, despite Local Rule 28.05 and Tennessee Code Annotated section 36-6-404 requiring that 

each party shall file and serve a proposed parenting plan. Husband thus argues that Wife cannot 
15

now complain about issues she waived in the trial court by failing to submit a proposed 

permanent parenting plan. Additionally, he contends that Wife agreed before the court to the 

parenting arrangement which the court ultimately ordered. See O’Rourke v. O’Rourke, No. 

M2007-01833-COA-R3-CV, 2010 WL 4629035 (Tenn. Ct. App. Nov. 10, 2010).

Wife admitted that she did not file a proposed permanent parenting plan. Further, she 

asserted that she did not want Husband’s parenting time restricted or supervised:

Q. Do you still want [Husband]’s parenting time restricted or 

supervised”

A. I wouldn’t say that.

Q. Okay. What would you say?

A. (Witness paused). I would say that if it’s [Husband]’s 

parenting time then [Husband] should be using his time to parent 

his children.

As noted in Jacobsen v. Jacobsen, No. M2012-01845-COA-R3-CV, 2013 WL 1400618,

“There are currently two different statutes setting out nonexclusive lists of factors for the trial court to apply to help it reach 

the goal of determining a child’s best interest.” 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 determinations, and Tennessee 

Code Annotated § 36-6-404, which governs the 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 factors contained in [the two 

statutes] are “substantially similar” and both permit the court to 

allow for consideration of any other factors that the court deems 

relevant. Thompson, 2012 WL 5266319, at *6. Thus, in most 

cases, the analysis and result would be the same regardless of

which set of factors is applied. Id.

Id. at *4. 

The factors to be considered in adopting a permanent parenting plan, as set out in

Tennessee Code Annotated section 36-6-404(b), are:

(1) The parent’s ability to instruct, inspire, and encourage the 

child to prepare for a life of service, and to compete successfully in 

the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s 

relationship with each parent, including whether a parent has taken 
16

greater responsibility for performing parenting responsibilities 

relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate 

and encourage a close and continuing parent-child relationship 

between the child and the other parent, consistent with the best 

interests of the child;

(4) Willful refusal to attend a court-ordered parent education 

seminar may be considered by the court as evidence of the parent’s 

lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, 

clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, 

defined as the parent who has taken the greater responsibility for 

performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each 

parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each 

parent as it relates to each parent’s ability to parent or the welfare 

of the child;

(10) The child’s interaction and interrelationships with siblings 

and with significant adults, as well as the child’s involvement with 

the child’s physical surroundings, school, or other significant

activities;

(11) The importance of continuity in the child’s life and the length 

of time the child has lived in a stable, satisfactory environment;

(12) Evidence of physical or emotional abuse to the child, to the 

other parent or to any other person;

(13) The character and behavior of any other person who resides 

in or frequents the home of a parent and such person’s interactions

with the child;

(14) The reasonable preference of the child if twelve (12) years of 

age or older. . . .
17

(15) Each parent’s employment schedule, and the court may make 

accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

Wife cites Tennessee Code Annotated section 36-6-106(a) as the source of the statutory 

factors that the trial court is obligated to consider. As noted above, those factors are similar, but

not quite identical, to the statutory factors set out in section 36-6-404 for the court to consider 

when creating a parenting plan. The Tennessee Code Annotated section 36-6-106(a) factors are 

as follows:

(1) The strength, nature, and stability of the child’s relationship 

with each parent, including whether one (1) parent has performed 

the majority of parenting responsibilities relating to the daily needs 

of the child;

(2) Each parent’s or caregiver’s past and potential for future 

performance of parenting responsibilities, including the 

willingness and ability of each of the parents and caregivers to 

facilitate and encourage a close and continuing parent-child 

relationship between the child and both of the child’s parents,

consistent with the best interest of the child. In determining the 

willingness of each of the parents and caregivers to facilitate and 

encourage a close and continuing parent-child relationship between 

the child and both of the child’s parents, the court shall consider 

the likelihood of each parent and caregiver to honor and facilitate 

court ordered parenting arrangements and rights, and the court 

shall further consider any history of either parent or any caregiver 

denying parenting time to either parent in violation of a court 

order; 

(3) Refusal to attend a court ordered parent education seminar 

may be considered by the court as a lack of good faith effort in 

these proceedings;

(4) The disposition of each parent to provide the child with food, 

clothing, medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, 

defined as the parent who has taken the greater responsibility for 

performing parental responsibilities;

(6) The love, affection, and emotional ties existing between each 

parent and the child;

(7) The emotional needs and developmental level of the child;
18

(8) The moral, physical, mental and emotional fitness of each 

parent as it relates to their ability to parent the child . . . ;

(9) The child’s interaction and interrelationships with siblings, 

other relatives and step-relatives, and mentors, as well as the 

child’s involvement with the child’s physical surroundings, school, 

or other significant activities;

(10) The importance of continuity in the child’s life and the length 

of time the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the 

other parent or to any other person . . . ;

(12) The character and behavior of any other person who resides 

in or frequents the home of a parent and such person’s interactions 

with the child;

(13) The reasonable preference of the child if twelve (12) years of 

age or older . . . ;

(14) Each parent’s employment 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). As the court noted in Port v. Hatton, No. M2011-01580-COAR3-CV, 2013 WL 865549 (Tenn. Ct. App. Mar. 6, 2013), “[w]hile the trial court is directed to 

consider the appropriate factors in reaching its decision, it is not required to list each factor with 

the court’s conclusion about how that factor impacted the custody decision.” Id. at *6. 

However, if the court has not set out specific findings of fact incorporating its reasoning about 

the statutory factors, this court may remand the case to the trial court to make such findings. Id.

Wife contends the trial court abused its discretion in designating Husband the primary 

residential parent when the only factor the court appeared to consider was the possibility that

Wife would relocate her residence. Wife claims that this finding was contrary to the evidence of 

record that Wife had permanent employment as a pharmacy manager, that her family resided in 

Hamblen County, and that she had no plans to relocate. However, Wife’s deposition testimony 

was introduced at trial, in which she stated that she did not know if she had plans to move the 

children out of Hamblen County, that she has thought about it, that she has told people she plans 

to move the children, and that she will if allowed. She testified she could work anywhere 

Walgreen’s had a store and that she wanted to “get on with my life and not have people 

constantly . . . (witness paused) . . . having to deal with issues.” Husband responds that Wife’s 

testimony was both contradictory and evasive about her plans to relocate with the children. 
19

Wife further asserts that the trial court erred in not limiting Husband’s parenting time for 

domestic violence under Tennessee Code Annotated section 36-6-406(a)(2), which provides as 

follows:

(a) ... a parent’s residential time as provided in the permanent

parenting plan or temporary parenting plan shall be limited if it is 

determined by the court, based upon a prior order or other reliable 

evidence, that a parent has engaged in any of the following 

conduct: . . . . (2) Physical or sexual abuse or a pattern of 

emotional abuse of the parent, child or of another person living 

with that child as defined in § 36-6-601.

The trial court’s duty to limit residential time for the 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 the issues Wife raises now on appeal are contrary to the direct 

agreement she stated at trial on October 6, 2017, which the trial court “blessed” on the second 

day of trial:

Mr. Stambaugh: Your Honor I think we’re in agreement that we . . 

. that it will be a joint custodial situation with fifty/fifty (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 some weekend 

time.

Court: I’m supportive of that.

Mr. Stambaugh: We’re working on that four/three/four split.

***

Court: You want some weekend time?

Mrs. Mangum: (Nodding affirmatively)

Court: You 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 with every other weekend and 

then add enough days in the off-week to make it fifty/fifty. And 

then Ms. Nan Buturff, who I like by the way, I mean, I don’t 

necessarily disagree with ... or I mean, agree with her on the 

whipping part but I really like her and I think she’s a good decent 

human being. You know, she’s ... I think she’s got good 

intentions and I think she wants these kids to be happy and 

flourish. So I like her. But anyway, she seemed to think that any 

more than four (4) days was a problem. But if we need to put a ...

like a five (5) day block every other week or something in there 

just to get this done fifty/fifty, are you good with that? I mean, can 

you live with 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: “Alright. Well I appreciate you all working it out. I mean, you all are the 

parents of these kids and you know what’s best. And I’m going 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 factual accounts and allegations are inconsistent as well. He states that her 

behavior throughout the marriage and during the litigation are inconsistent with the way a victim 

would have reacted. He contends that Wife never made any reports of abuse to anyone,

including her psychiatrist, did not call the police, and did not seek an order of protection until the 

divorce was filed. She dismissed her petition for an order of protection against Husband shortly 

after filing it.

Wife contends that Husband stipulated to the United States District Court for the Eastern 

District of Tennessee that he had physically abused her. Because hitting Wife was a violation of 

Husband’s federal probation, to avoid having it revoked, he filed a document in which he 

stipulated to “slapping” Wife in the presence of the children. As a condition of the terms of his 

probation, he was required to participate in domestic violence 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 

absolutely barring any parent from being named as the primary 

residential parent of a child if that parent has any history of abuse, 

no matter the degree of abuse involved or its remoteness in time. 

Both the legislature and the courts take domestic abuse very 

seriously, as they should. We do not believe, however, that the 

legislature intended the statute to be applied so broadly as to 

deprive the trial court of its discretion to make with the best

interest of the children, based upon the factual situation that exists 

at the time of that determination.

2010 WL 4629035, at *15. We found that the mother waived the issue of the application of 36-

6-406 because she had repeatedly entered into parenting plans following the divorce permitting 

the father to share custody. Id. at *15. The court further noted that the mother made no assertion 

of abuse following the filing of the divorce complaint. Id.

The appeal before us is an appeal from an initial determination of the primary residential 

parent in which there was testimony at trial regarding the alleged abusive behavior. Thus, this 

case is not like O’Rourke where the mother attempted to apply the statute many years after the 

divorce. We must address whether the trial court erred in failing to apply the statute.

The trial court is required to consider evidence of physical or emotional abuse against the 

other parent in determining the custody and parenting schedule for the children. Burden, 250 

S.W.3d at 913. Although the trial court is entitled to make credibility determinations based on 

its observations in the courtroom:

[T]he court cannot simply disregard the weight of the evidence of a 

substantive issue on the basis of nothing more than its own 

conclusory statements regarding a party’s character. Whether or 

not the court believes [the father] is “totally harmless” and 

“gentle,” it is still required to duly consider the evidence that he 

committed abuse of the sort that would affect the outcome of the 

case under §§ 36-6-406(a), 36-6-106(a) and 36-6-404(b).

Id. at 914. 

As noted by Wife, in naming Husband primary residential parent, the only factor that the 

trial court appeared to consider was the stable environment offered by Husband in the marital 

home. The court did not enumerate or discuss the statutory factors as to the education, character, 

and experience of the parents, their economic circumstances and employment schedules, and 

their conduct. There is no discussion of the “best interests of the children.” The trial court did 

not mention or discuss the children’s ages, habits, mental and emotional make up; the relative 
22

location of the parents’ residences; the relationships between the children, caregivers, and family 

members; or the relationships between the parents and children. It made virtually no findings of 

fact regarding the abuse allegations but designated Husband as the primary residential parent. 

We must remand for the court to make appropriate findings as to the abuse issue in addition to all 

other relevant and appropriate statutory factors. Consistent with our standard of review, this is a 

determination more appropriately made by the trial court. All other matters raised related to the 

permanent parenting plan are pretermitted.

 

C.

Wife asserts that the trial court erred in the classification, valuation, and division of 

marital assets. She contends that the trial court failed to make sufficient findings of fact 

regarding the statutory factors for the equitable division of marital property.

When equitably distributing the marital property, the trial court must first identify all 

property interests at issue in the divorce proceeding. See Keyt, 244 S.W.3d at 328. After 

identifying the property interests, the trial should then classify the property as either marital or 

separate property. Id. It is well settled that a trial court must identify all assets of the parties in 

divorce proceedings as either separate or marital property prior to equitably distributing the 

marital property. Id. The courts do not have the authority to make a distribution of separate 

property, so the classification of the property is an important threshold matter. Id. So

classification determinations present questions of fact. Woodward v. Woodward, 240 S.W.3d 

825, 828 (Tenn. Ct. App. 2007). Accordingly, a trial court’s classification of property as either 

separate or marital will not be disturbed unless it is not supported by a preponderance of the 

evidence. Id.

Tennessee Code Annotated section 36-4-121(b)(1) (2017) defines marital property as 

follows:

(A) “Marital property” means all real and personal property, both 

tangible and intangible, acquired by either or both spouses during 

the course of the marriage up to the date of the final divorce 

hearing and owned by either or both spouses as of the date of filing 

of a complaint for divorce ....

(B)(i) “Marital property” includes income from, and any increase 

in the value during the marriage of, property determined to be 

separate property in accordance with subdivision (b)(2) if each 

party substantially contributed to its preservation and appreciation;

(ii) “Marital property” includes the value of vested and unvested 

pension benefits, vested and unvested stock option rights, 

retirement, and other fringe benefit rights accrued as a result of

employment during the marriage;
23

(iii) The account balance, accrued benefit, or other value of vested 

and unvested pension benefits, vested and unvested stock option 

rights, retirement, and other fringe benefits accrued as a result of 

employment prior to the marriage, together with the appreciation 

of the value, shall be “separate property.” In determining 

appreciation for purposes of this subdivision (b)(1)(B)(iii), the 

court shall utilize any reasonable method of accounting to attribute 

post marital appreciation to the value of the premarital benefits, 

even though contributions have been made to the account or 

accounts during the marriage, and even though the contributions 

have appreciated in value during the marriage; provided, however, 

the contributions made during the marriage, if made as a result of

employment during the marriage and the appreciation attributable 

to these contributions, would be “marital property.” When 

determining appreciation pursuant to this subdivision (b)(1)(B)(iii), 

the concepts of comingling and transmutation shall not apply.

(iv) Any withdrawals from assets described in subdivision 

(b)(1)(B)(iii) used to acquire separate assets of the employee 

spouse shall be deemed to have come from the separate portion of

the account, up to the total of the separate portion. Any 

withdrawals from assets described in subdivision (b)(1)(B)(iii) 

used to acquire marital assets shall be deemed to have come from 

the marital portion of the account, up to the total of the marital 

portion;

Tenn. Code Ann. § 36-4-121(b)(1)(A), (B) (emphasis added.)

“Separate property,” on the other hand means:

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

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

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

Revenue Code of 1986 (26 U.S.C.), 1 as amended;

(B) Property acquired in exchange for property acquired before 

the marriage;

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

before marriage except when characterized as marital property 

under subdivision (b)(1);

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

devise or descent; ...

Tenn. Code Ann. § 36-4-121(b)(2)(A)-(D) (2017).
24

The Tennessee Supreme Court has previously determined that the appreciation of a

retirement account funded during the marriage is deferred compensation and is marital property 

subject to division during divorce. See Langschmidt, 81 S.W.3d at 749 (“Retirement benefits 

accrued during the marriage clearly are marital property under Tennessee law.”). However, our 

Supreme Court also held in Langschmidt that “the appreciation of a spouse’s IRA during the 

marriage is separate property when funded completely with premarital earnings and absent 

substantial contribution by the other spouse to the preservation and appreciation of the IRA.” Id.

at 742. The Supreme Court thereafter clarified its previous holding in Langschmidt and 

emphasized that the IRAs at issue in Langschmidt were not a product of the spouse’s 

employment, did not involve deferred compensation, and had been funded entirely by premarital

funds. Snodgrass v. Snodgrass, S.W.3d 240, 255 (Tenn. 2009). The Court in Snodgrass further 

held “that 401(k) accounts held through a spouse’s employer are ‘retirement or other fringe 

benefit rights relating to employment.’” Id.

“Once the parties’ marital property has been classified and valued, the trial court’s goal is 

to divide the marital property in an essentially equitable manner.” Owens v. Owens, 241 S.W.3d 

478, 489-90 (Tenn. Ct. App. 2007) (citing Tenn. Code Ann. § 36-4-121(a)(i)). “A division of 

marital property is not rendered inequitable simply because it is not precisely equal, or because 

each party did not receive a share of every piece of marital property.” Id. at 490. “The approach 

to dividing a marital estate should not be mechanical, but rather should entail carefully weighing 

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

presented.” Id. “Trial courts have broad discretion in fashioning an equitable division of marital 

property, and appellate courts must accord great weight to a trial court’s division of the marital 

property.” Id.

In making equitable division of marital property, the court shall consider all relevant 

factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, 

employability, earning capacity, estate, financial liabilities and 

financial needs of each of the parties;

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

education, training or increased earning power of the other party;

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

capital assets and income;

(5)(A) The contribution of each party to the acquisition, 

preservation, appreciation, depreciation or dissipation of the 

marital or separate property, including the contribution of a party 

to the marriage as homemaker, wage earner or parent, with the 
25

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

the same weight if each party has fulfilled its role;

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

means wasteful expenditures which reduce the marital property 

available for equitable distributions and which are made for a 

purpose contrary to the marriage either before or after a complaint

for divorce or legal separation has been filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the 

division of property is to become effective;

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

reasonably foreseeable sale of the asset, and other reasonably 

foreseeable expenses associated with the asset;

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

spouse; and

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

between the parties.

Tenn. Code Ann. § 36-4-121(c).

It is apparent to this court that the trial court struggled mightily with these parties and the 

case. In the absence of sufficient fact findings reflecting the property valuations, it is difficult for 

us to discern the rationale behind the property division and whether it is equitable. During the 

reconsideration of this case, the trial court is further directed to make specific fact findings as to 

the property issues pursuant to the factors listed in 36-4-121(c).

D.

Wife seeks an award of attorney fees and costs for this appeal. Litigants are generally 

required to pay their own attorney fees unless a statute or contract provision provides otherwise. 

John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998). An award of 

attorney fees is appropriate in a domestic relations case in the following circumstances: “(1) 

awards to economically disadvantaged spouses as additional 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 the MDA contains a provision for 

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 for appellate attorney fees, the court 
26

considers “the requesting party’s ability to pay, the requesting party’s success on appeal, whether 

the appeal was taken in good faith, and any other relevant equitable factors.” Culbertson v. 

Culbertson, 455 S.W.3d 107, 158 (Tenn. Ct. App. 2014) (citing Moran v. Willensky, 339 S.W.3d 

651, 666 (Tenn. Ct. App. 2010)). A decision to award attorney fees on appeal is within the 

“sound discretion” of the appellate court. Luplow v. Luplow, 450 S.W.3d 105, 120 (Tenn. Ct. 

App. 2014). 

Husband asserts that this appeal is frivolous and not in good faith. Accordingly, he seeks 

an award of his attorney’s fees and costs from both Wife and Amici Curiae under Tennessee 

Code Annotated section 27-1-122, which allows for an award of attorney’s fees when an appeal 

is frivolous or taken solely for delay.

Despite the fact that we do not find Wife to be entitled to an award of attorney fees for 

this appeal, we do not agree with Husband that the appeal by Wife was frivolous and not in good 

faith. Taking all the relevant factors into account, we decline to award attorney fees on appeal to 

either party.

V. CONCLUSION

For the foregoing reasons, we vacate the trial court’s judgment except as to the divorce. 

This case is remanded for the trial court to make appropriate findings of fact and conclusions of

law that consider all the relevant and applicable statutory factors.

_________________________________

 JOHN W. MCCLARTY, JUDGE