### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON S e pt e m be r 23, 2004 S e s s i on

RH ON DA L E I GH J ON E S RO B I NS ON

v. RUS S E L L RAYNOR ROB I NS ON
An Appeal f

romthe Circ uit Court for Sh elby County No. CT-00-3852 Jam es F . Russell, Jud ge

No. W2003-01836-C OA-R3-C V - F iled May 9, 2005

This is a divorce c ase a

bout dissipation of marital a ssets and custody . Throug hout the marria g e, the wife took care of t he children while t he husband provided financial support. The husband wa s the
owner and oper ator of se vera l automobile businesses. After the wife f iled for divorc e, the husba nd’s automobile businesses fa iled, resulting in the husband’s fathe r purcha sing the businesses. After a leng thy trial, the trial court found that the husband intentionally dissipated marital asse ts, including the automobile businesses. The wife was desig nated the c hildren’s primary residential pa

rent. The husband appea ls. We a ffirm, finding that the evidenc e supports the trial court’s finding t h at t he husband dissipated the businesses by failing to preserve them, and the desig nation of the wife as prima ry re sid e nti a l pa

re nt. Rule 3 Appeal; Jud gm ent of the Circuit Court is af fi rm ed and rem anded

H OL L Y M. K I RBY , J. , d e li v e r e d th e o p in io n o f th e c o u r t, in w h ic h W. F RAN K C RAW FORD , P.J ., W.S ., and A L AN E. H I G H ERS , J ., joined.
David E. Cay wood and Holly J . Renken, Memphis, for Def endant/Appe llant Russell R aynor Robinson

S t u ar tB. Br ea k s t o n e a n d Zac h ar y M

. M o o re , M em p h i s , fo r P l ai n t i ff / Ap p el l ee R h o n d a Lei gh Robinson

OP IN ION
Russell Ray nor Robinson (“Husba nd”) and Rhonda L eig h J ones Robinson (“ Wife”) mar ried on Aug ust 16, 1991. This was the first marria g e for both parties. Toge ther, they had four children:-2-

Tay lor B ro ok e , bo rn on De c e mbe r 4, 19 93 , Au sti n Ra y no r, bo rn on Ma y 22 , 19 95, Mac ke nzie L eig h, born on June 20, 1997, and Reag an Gr ace , born on June 3, 2000.
Both pa rties g raduated from c olleg e but Wife never held a full time job. W ife’s only work experience was a s a part-time model. Wi fe took c harg e of c aring for the c hildren and the household, while Husband e arne d money to support the family

. After the pa rt i es m arried, they moved to Austin, Texas, where H usband worke d as a sa les repr esentative. I n 1995, the parties moved to Memphis so that Husband could wor k for his father, Mack Robinson (“G randf ather ”).

At that time , G rand fathe r o wn e d a re ta il auto mob ile de a le rs hip that so ld u se d auto mob ile s. Th e de a le rs hip mark e te d to c lie nts wi th p oo r c re dit his tory a nd fi na nc e d loa ns fo r the se c us tom e rs

. For approximately eig hteen months, Husba nd worke d as a sales manag er at Grandfather ’s
a uto mob ile de a le rs hip , u nti l th e de a le rs hip we nt o ut o f b us iness. Af te r G rand fathe r’ s d e a le rs hip went out of business, Husba nd continued to work f or him for a

time collecting rec eivables.

I n late 1996, Husba nd started his own automobile wholesal e b u s i n es s, called Southern Who le sa le . H e uti lize d $ 20 ,0 00 he ob ta ine d f ro m G rand fathe r i n o rd e r t o s tart the bu sin e ss. Husband c hara cterized t h i s as a l o an, althoug h there wer e no written documents desig nating it as such or indicating a

schedule for r epayment. At first, Husband ope rate d Southern Wholesale from his home a s a sole proprietorship. The bu sin e ss c on sis te d o f b uying us e d auto mob iles at w ho le sa le a uc tio ns , a ndthe n r e se lli ng the m to local automobile dea lerships. I nitially , Husband used c ash advance s from cr edit car ds to fund the purcha se of the a

utomobiles. L ater , in order to f urther f und the purc hase of automobiles, Husband obtained a loa n from Trustmar k Ba nk and li nes of credit fr om Tipton Bank a nd Trust, Automotive Financ e Corporation, and Mannheim. S outhern Wholesale wa s later incor porate d, with Husband as the sole sha

reholde r, and its oper ations were moved out of the pa rties’ home.

I n a dd iti on to S ou the rn Who le sa le , in Oc tob e r 1 99 9, Hu sb a ndop e ne d a re ta il auto mob ile deale rship in Memphis, Tennessee , called Coving ton Pike Auto Depot. Empl oy ees Fred K ratt and Ra nd y Od om w e re hir e d to ma na g e the de a le rs hip. I n 2 00 0, Hu sb a ndop e ne d a se c on d r e ta il de a le rs hip in Me mph is on Mt. Mo ri a h wi th pa rt ne rs To m L oc ka

by a nd Jim Whit ti ngto n. This
se c on d r e ta il s tore was a Th ri ft y fr a nc his e , a ndCov ing ton Pik e Au to D e po t be c a me a Th ri ft y fr a nc his e a t th e sa me tim e . In th e sp ri ng of 20 01 , Hus ba nd op e ne d a thir d T hrif ty re ta il auto mob ile de a le rs hip in Jone sb or o, Ar ka ns a s. I n la te 20 00 , Kr a tt le ft a nd Hu sb a nd ’s e mpl oy e e , Pu g Vi c ke rs , wa s h ir e d a s ma na g e r f

or a ll thr e e Th ri ft y

re ta il loc a tio ns , a nd a dd iti on a l e mpl oy e e s we re hir e d to he lp w ith op e ratio ns

. The thre e re tail locations acte d as sales outlets for Husband’s automobile wholesaling bu sin e ss. Sou the rn Who le sa le b ou gh t us e d c ars a t auc tio n, the n d e liv e re d th e m to the re ta il operations. The reta il ope rations sold the car s to customers and then paid Southern Whol esale the wholesale cost of the automobiles, plus a profit.-3-

As compensation, Husband took draws f rom Southern W holesale, and later a reg ular sala

ry from Southern Wholesale a nd at least one of the re tail dealer ships. I n addition, numerous per sonal expen d it u r e s w e re f

unded throug h Southern Wholesale. Southern Wholesale helpe d fund items such
a s th e pu rc ha se of

a n a ir plane , a su bs ta nti a l po rt fo lio of

sto c k, a ndim pro vem ent s to th e pa rt ie s’ second home on Pisgah Road and the thirty -three acr es adja cent to it.
The business g ener ated substantial monies. During the y ear s 2000, Husband had an adjusted g ross income of $1,790, 316. Hu s b an d spent consider able time tra ding stoc ks, with a volume of $5,747,544 in stock trades in 2000.

I n time, the parties’ marria g e enc ountere d difficulties. I n early 2001, the parties participate d in c ou ns e lin g , ma

kin g se pa rate we e kly

tr ips to T e xas t o me e t w it h a ps y c ho log ist . T he se e ff orts pr ov e d u ns uc c e ssf

ul.

On Marc h 20, 2001, Southern Wholesale paid Gr andfather $12,500. This was c hara cterized as a pa rtial repay ment of t he $20,000 Gra ndfathe r had g iven Husband in November 1996 in orde r to start his wholesale automobile business, S outhern Wholesale.

On J une 22, 2001, Wife filed a complaint for divorce, a lleg ing ina ppropriate marital conduc t
as gro u n d s

. On t h e sa m e da y , t h e tr i al co u rt en j o i n ed Hu s b an d fr o m “s p en d i n g , t r a n s f erri n g, c o n v e y in g , d e s tr o y in g , lo a n in g , s e ll in g , c o n c e a li n g , s e c r e ti n g , tr a d in g , d is p o s in g o f o r d is s ipating the parties assets, ex cept a s neede d for or dinary , nece ssary and re asonable living expenses.” In the
c omp la int fo r d ivo rc e , Wif

e so ug ht c us tod y

of the c hil dr e n, c hil d s up po rt , a lim on y , atto rn e y ’s fe e s, and an e quitable division of marital property . The pa rties sepa rate d in ear ly

Aug ust 2001.

I n J u l yof 2001, Husband obta ined a $3.5 million loan from Fir st Tennessee Bank. The proce eds of this l o an wer e to be use d in part to pay off the prior loans and lines of c redit fr om Trustmark B ank, Tipton Bank and Trust, Automotive F inance Corporation and Ma nnheim, totaling approx i mately

$1 milli on. I n connec tion with thi s loan, First Te nnessee reque sted financ ial statements from Southern Wholesale, H usband’s pe rsonal tax returns, and a statement of H usband’s net worth. Husba nd’s net worth statement showed pe rsonal net worth in ex cess of $3 milli on at that time.

First Te nnessee also requir ed collate ral for t h e l o an

. The business asse ts of Southern Wholesale wer e pledg ed as collater al, as well as Husband and Wi fe’ s persona l assets, including the 33 acr es of land on Pisg ah Road a nd a sec urities acc ount. The combined va l u e o f Husband a nd Wife’s persona l assets was a pproxi mately

$700,000.

I n addition, Grandf

ather g uara nteed the $3.5 million loan with First Tennessee, and pledg ed tw o p arc e ls o f r e a l pr op e rt y a s c oll a te ra l f

or his so n’ s lo a n. I n a

sid e a g re eme nt no t di sc los e d to First Te nnessee , Southern Wholesale ag ree d to pay Gra ndfathe r a “ gu ar an t o r fee ” of $10,000 pe r mon th. Hu sb a ndwa s f

re qu e ntl y pe rm itt e d b y

Gr a nd fathe r t o e nd or se a ndc a sh the $1 0, 00 0 mo nth ly fee ostensibly

paid to Gra ndfathe r as g uarantor.-4-

I n July 20 01 , H us ba ndhir e d Jam e s B utl e r a s mana g e r o f S ou the rnWho le sa le a ndthe Th ri ft y reta il stores. Butler

revie wed the books and manag ement pra ctices for t he retail stores and Southern Wholesale.

On J uly 9, 2 0 0 1 , afte r Husband r ece ived the loan f rom First Te nnessee , Husband g ave Gra ndfathe r the sec ond installment of $12,500 as repay ment from the 1996 loan, plus a n additional $5,000. On Aug ust 1, 2001, Husband also wrote Gra ndfathe r a c heck f or $5,000, but Husband wa s permitted to kee p the proc eeds of that chec k.

I n Aug u s t 2 0 01, in connec tion with the parties’ Aug ust 15 wedding anniver sary , Husband planned a n extravag ant wee kend trip for him and W ife, as an attempt to rec oncile. He chartere d an airplane at a c ost of $8,000, planned dinner on a y acht in F lorida at a cost of $12,0 00, rese rved a room at the Ritz C arlton at a cost of almost $4,000, and paid a tra vel ag ency $4,000 for making the
arr ang ements. These expenses wer e paid throug h Southern Wholesale. Wife ref used t o g o on the trip.

I n Aug ust 2001, the trial court appointed Stephanie Michee l (“Miche el”) to act as g uardia n a d li te m on be ha lf

of the pa rt ie s’ c hil dr e n, to i nv e sti g a te pa re nti ng iss ue s. The tr ia l c ou rt a lso appointed a psy cholog ist, Dr. John C iocca (“D r. Ciocca ”) to pe rform psy cholog ical eva luations of bo th p art ie s.

I n Se pte mbe r 20 01 , Hu sb a nd dr e w app ro xima te ly $5 97 ,0 00 fr om S ou the rnWho le sa le . T his
wa s u se d to pa y

Hu sb a nd ’s ou tst a nd ing pe rs on a l in c ome ta xes.

I n October

2001, in response to Wife’s pe tition to have Husband pay her interim attorney ’s fee s, Husband submitt ed an aff idavit by employ ee J ames Butler reg arding the financ ial condit ion of Southern Wholesale a nd the three reta il automobile sales locations. The a ffidavit stated:

4. As of Oc tob e r 1 6, 20 01 , [H us band’s a uto mob ile de a le rs hip s] w e re in a de fi c it situatio n w ith a

ne g a tiv e c a sh fl ow a s f

oll ow s: (a) Southern Wholesale, I nc.: ($70,796.00) (b) Coving ton Pike Auto Depot: ($145,789.16) (c) Mt. Moriah Auto Depot: ($350,562.99) (d) Thrifty

Auto Sales of Jonesboro: ($237,522.60) 5. Sales for e ach of t h e fo u r companies a re c urre ntly

25% to 40% lower

than they
wer e thirty

(30) day s ag o. * * * 11. The four companies owned by [Husband] are in a desper ate f

inancial situation and, without a lar g e infusion of c apital in the nea r future , will likelynot survive.

Husband filed his own a ffidavit as w ell, claiming that he held virtually no unencumbe red a ssets, that his automobile businesses were “h olding c hecks in the a pproxi mate amount of $800,000.00 that
c a nn ot b e pa id to v e nd or s a ndc re dit or s d ue to a la c k o f f un ds .” Hu sb a nda sse rt e d in his a ff ida vit that he owe d First Te nnessee Ba nk $2,492,070, and that “a ll of my persona l and business assets ar eT he phr as e “ out of t r us t ” i s us ed f

r equen t l y t hr ough out t he t r i al procee di ng s i n c onnec t i on wi t h t he Fi r s t T enn es s ee 1 B a n k lo a n . In th is c o n te x t, the ter m m e a n s tha t au to m o b iles a re p u rc h a se d w ith b o rr o w e d fun d s; the b o rr o w e r is expec t ed t o re pay t he bo r r owed f un ds t o t he l ender wh en t he car s ar e s ol d or wi t hi n a gi ven l eng t h of t i me. W hen this is n o t d o n e , t h e b o rr o w e r is “o u t o f t ru st.”

-5- pledg ed as se curity

for the loa n from F irst Ten n es s ee Ba nk and ther efor e cannot be liquidated or further encumbe red.”
Shortlyafte r this, in November 2001, H usband filed his answe r to Wife’s complaint for divorce , as we ll as a counte rcla im for divorce , citing ina ppropriate marital conduct by Wife. I n the counter claim, Husband soug ht custody of the pa rties’ four children.

I n N o v e m b e r

a n d D e c e mb e r

2 0 0 1 , H u s b a n d a n d Ja m e s B u t l e r c o n t a c t e d o f

f i c i a l s o f F i r st Tenne ssee B ank (“ Ba n k ”) i n order to meet with them. I n the meeting s, Husband and B utler inf orm e d the B a nk of fi c ia ls o f the ble ak f

inanc ia l c on dit ionof

Hu sb a nd ’s bu sin e sse s, c on sis te nt w ith the affidavits submitt ed to the t rial court. Not surprising ly , the Bank officials wer e conc erne d about the status of Husband’ s substantial loan. There afte r, i n Dec ember 2001, Gra ndfathe r conta cted the Ba nk as well, in c onnection with his gua ranty of Husband’ s loan, and met with B ank off icials about the financ ial circ umstances of Husband’s businesses. Gra ndfathe r’s understanding at that time was that H us ba nd ’s a uto mob ile bu sin e sse s w e re “ ou t of trus t” app ro xima te ly on e mil lio n doll ars wi th

1 F ir st T e nn e sse e B a nk . G rand fathe r t oldthe B a nk of fi c ia ls that he plann e d to p ur c ha se the loan, in order to essentially

step into the shoes of F irst Tennesse e B ank and be come a cre ditor to Husband
a ndhis bu sin e sse s. F a the r d id n ot atte ndGr a nd fathe r’ s me e tin g wi th B a nk of fi c ia ls.

Th e re a ft e r, in F e br

ua ry 20 02 , F ir st T e nn e sse e B a nk no tif ie d H us ba ndthat th e loan w a s in default status. At the tim e Husband rec eived this notice, Gr andfather wa s alrea dy in the proce ss of acquiring f

unding and nece ssary

approva l to purchase First Te nnessee Ba nk’s position.

I n the appr ox imately

two-month period it took for Gr andfather to complete his purchase of the F ir st T e nn e sse e loan, be tw e e n Jan ua ry 29 , 2 00 2 a ndMa

rc h 2 2, 20 02 , So uth e rnWho le sa le eng ag ed in the following transac t i o n s : (1 ) paid J im Butler $75,000; (2) paid Husband’ s divorce
a tto rn e y $2 2, 50 0; ( 3) pa id $ 3, 48 0 to Hu sb a nd ’s prior di vo rce a tto rn e y ; ( 4) pa id $ 30 ,0 00 to Gra ndfathe r as g uara ntor fee s; (5) paid $35,261 to Pug Vicker s, Husband’s fo rm er em p l oy ee, ( 6) paid $37,400 to other prior attorney s. These transactions totaled $203,641.

After the Fir st Tenne ssee loan was called, t he property pledg ed as collater al was subjected to fore closure and l iquidation proce dures. The collateral included property belong ing to Husband
a ndWif e , in c lud ing the 33 a c re s on Pisg a h Roa d, the ir sto c k portf oli o, a nd the ir

ve hic le s. Af

te r this , the ba la nc e ow e d to Fir st Te nn e sse e wa s a pp ro xima te ly

$1 ,0 88 ,0 00 . G rand fathe r s e c ur e d a loan in thi s a mou nt t o p ur c ha se F ir st T e nn e sse e ’s po sit ion . Gr a nd fathe r the n li qu idate d th e re ma ini ng a sse ts of the auto businesses, including the automobiles, which re sulted in a defic i en cy b alance of $167,894.T he l et t er ha s ot her i l l egi bl e mar ki ng s t hat may be ot her s i gn at ur es

. T hi s was not an i s s ue i n t he cas e. 2

-6- Gr a nd fathe r the n s ue d H us ba ndfo r thede fi c ie nc y ba la nc e , p lus pre-

ju dgme nt andpo stjudgme nt interest, plus attorney ’s fe es of $41,973.50. Husband filed no response to Grandf ather ’s
c oll e c tio n s uit , a nda s a

re su lt, Gr a nd fathe r t oo k a de fa ult jud g me nt a g a ins t hi m.

I n th e mid st of thi s, in Janu ary 20 02 , Gr a nd fa the r ope ne d a who le sa le a uto mob ile bu sin e ss an d a retail automobil e business. Ji m Butler, a lthough still employ ed by Husband, set up Gra ndfathe r’s automobile businesses. Grandf ather ’s r et ai l automobile business subleased the location of Husba nd’s Covington Pike Auto Depot in Me mphis. Gr andfather hired J im B utler and Husband to run the ne w automobi l e b u sinesses, utiliz ing the fix tures and e quipment that had be lon g e d to Hu sb a nd ’s bu sin e sse s, a ndma ny of the sa me e mpl oy e e s.

Meanw hile, afte r the pa

rties sepa rate d, they

ag ree d that their four children w ould spend equa l pa re nti ng tim e wi th H us ba nd a nd Wif e , pe nd ing re so lut ion of the ir div or c e

. Th e g ua rd ia n a d li te m, Michee l, investigated matters r elated to the ch i l d re n , including interviews with the childre n, the parties a nd other pe rsons with knowledg e. The g uardia n also i n v estig ated the pa rties’ a lleg ations ag ainst eac h other a s they related to the childre n, such as dr ug use, paramours in the prese nce of the
c hil dr e n, a ndde fi c ie nc ie s in parent in g . D uring thi s ti me a s w e ll, Hu sb a nde mpl oy e d a private investigator to investigate Wife.
The pa rties eng ag ed in settlement neg ot i ations, to no avail. I n May 2002, Gra ndfathe r interv e n e d in th e p ar ti e s ’ s e tt le me n t n e g o ti a ti o n s , s e n d in g Wi f e ’ s a tt o r n e y

a le tt e r

. G r a n d f

ather ’s letter stated: “ I

am not happy

with how things a

re pr ocee ding w ith [ Father] and all o f t he divorc e issues, so, as a result I am making the following offe r to a ssist in the final as s et an d ali mony statement of this divorce .” The letter l i s t ed t h e terms of the settlement off er, indicating that he would bring the parties’ mortg ag e cur rent a nd pay various other of the parties’ obligations, provided that Wife ag ree d that Husband would re ceive a minimum of equal pare nting time. T he letter showed the words “ acc epted & ag ree d” handwritten acr oss the bot tom and was sig ned by Wife and counse l fo r Hu sb a nd

. Th e re a ft e r, a tto rn e y s f or the pa rt ie s e xch a ng e d le tte rs in an u ns uc c e ssf ul atte mpt

to 2 fi na lize the a g re e me nt.

After the parties failed to re ach a final settlement, Husband took the position that Gra ndfathe r’s orig inal letter, “acc epted and ag ree d” by the parties, constituted a final se ttlement of all of t he divorce proceeding s. He filed a P etition to Enforce Settlement Ag ree ment on J uly 7, 2002 in an attempt to enfor ce the terms of Gr andfather’s le tter. I n an orde r date d November 1, 2002, the tr ia l c ou rt

de nie d H us ba nd ’s mot ion to e nf or c e Gr a nd fathe r’ s le tte r a s a se ttl e me nt a g re e me nt, fi nd ing “ that th e re is n o b a sis to e nf orce th e S ettlem e nt A g re e me nt b e c a us e it i s v oiddu e to i t missing ce rtain esse ntial elements and, the ref ore, it is unenfor cea

ble.” The ref

ore, the matter pr oc e e de d to tr ia l.

The trial c ommenced on F ebrua ry 24, 2003. I t lasted over two w eeks an d gen erated an
e xten siv e re c or d. I n ad dit ion to the pa rt ie s a ndGr a nd fathe r, nu me ro us wi tne sse s te sti fi e d, prima ri ly
re g ard ing Hu sb a nd ’s bu sin e ss andfi na nc ia l de a lin g s, a nda lso re g ard ing pa re nti ng iss ue s.-7-

Husband testified that the financial difficulties i n his automobile businesses stemmed from his lack of kno wl edge and experience , and fr om the fac t that he hired and trusted a se ries of manag ers who did not ser ve him well. He said that, before opening his thre e reta il locations, he had
never run a r etail business befor e; he ha d only worke d in his father’ s retail automobile dea lership. He ha d no business plan an d n o p ro fe s s i onal advice . He hire d Fr ed Kr att and Randy Odom and relied on the m completely . L ikewise, whe n he partne red with Tom L ockaby and Ji m Whi ttington to open th e Mt . Moriah re tail location, and whe n he hire d Pug Vic kers a nd opened the J onesboro location, he r elied on them complete ly and neve r sought advice from a seasone d reta il store operator. Husband a sserted that, prior to Wife filing f or divorce , he did not rea liz e the poor financ ial condition of his businesses, and how his e mploy ees had exploi ted him. He noted that he e nded up in disputes with Pug Vicke rs and Randy Odom that wer e settled, and that Fre d Kratt had a lawsuit pending ag ainst him. Husband asserted that he did not discover the poor financial conditi on of his businesses until he hired James Butler in July2001, afte r Wife’s complaint for divorce was filed.

Husband e x plained that his business, Southern Wholesale, would pay Gra ndfathe r a fee of $10,000 per month for g uara nteeing the Fir st Tennessee loan, and Gr andfather would loan H usband this money

by permitting H usband t o cash the chec ks from S outhern W holesale, in exchang e for a p ro m i s s o ryn o t e. Hu s b an d u t i l i z ed t h i s m o n ey t o h i re p ri v at e i n v es t i gat o rs t o fo l l o w W i fe

. T h ro u gh the private inv e sti g a tor , H us ba nd lea rned that, a ft e r the pa rt ie s se pa rate d, Wif

e be g a n a ro ma nti c relationship wit h Mitch Wood.

Hu sb a nd a c kn ow le dg e d th a t, p ri or to the pa rt ie s’ se pa ratio n, Wif

e wa s p ri mari ly

re sp on sib le for the c are of their children, and that he spent the majority of his tim e occ upied with work. Af ter the parties separ ated and temporarily ag ree d that eac h would spend a wee k wi t h t h e c h i ldren, Hu sb a ndsa id, he ha d s pe nt c on sid e ra ble tim e wi th the m a ndha d d e ve lop e d a n e xce lle nt r e la tio ns hip with the children.

Hus ban d was a sk e d a

bo ut the do c ume ntatio n g ive n to F ir st T e nn e sse e B a nk in o rd e r t o obtain the $3.5 m i llion loan, and in particular his personal stateme nt of net worth indicating a net
wo rth o f o ve r $ 3 mi lli on . H us ba ndte sti fi e d th a t w he n h e de liv e re d the s ta te me nt o f n e t w orth t o First Tenne ssee, he verba lly informed them that the stated net worth was offse t by rec ent l o ans totaling $1.5 million, and that First Te nnessee did not require him to add thos e loans to his written statement of ne t worth. Husband a sserted that he did every thing he could to save his businesses, but ult imate ly

wa s u ns uc c e ssf

ul.

I n her testimony , Wife described Husband prior to the parties’ separ ation as having worke d virtually all day ; after

he came home in the eve nings, he would continue to work on the telephone
or on his c omp ute r. She sa id that H us ba ndse ldo m in te ra c ted with the c hil dr e n, wa s r are ly aff ectionate toward the m, and took no responsibilityfor their ca re. She said that she ag ree d to an alternating we ek sche dule on a tria l b as i s because the c hildren cr aved attention from their father. Ho we ve r, sh e fe lt t

hat it wa s n o lo ng e r w or

kin g , th a t th e c hil dr e n w e re un c omf orta ble be ing a t th e ir fathe r’s house and away

from her for suc h a long period of time.-8-

Wif e des cri bed Hu sb a nda s d e ma nd ing a ndc on tr oll ing . Sh e sa id that he didno t di sc us s fi na nc ia l matte rs wi th h e r e xce pt t o g ive he r an a ll owa nce fro m whic h to pay the ho us e ho ld b ill s. Wife testified about an earlier occ asion in October 2000 when Wife attempted to leave H usband. Wife said that Husband took t he childre n and told her she would never see the m ag ain if she did not return. She sa id that Husband g lued the locks to the house shu t i n order to keep he r out, and threatened to take the childre n, tie bricks to her ankles a nd throw her

into the Missi ssippi R iver.

Wif e sa id that sh e tol d H us ba ndthat sh e ha d b e c omeinv olv e d w ith Mit c h Wo od . A ft e r that, she said, she was awa

re that Husband had private investig ators follow he r and Wood. Wife said that the private investigators d i d n o t try to hide; her home w as under constant surve illance a nd they followed he r whe reve r she we nt. Wi fe describe d an occasion on which she and Wood were ha ving dinner at a re staurant late one weekday night while the children wer e in Husband’s care . Husband broug ht the parties’ four children to the re staurant, ostensibly for a late desse rt, and sat down at the table next to W ife a nd Wood.

Th e g ua rd ia n a d li te m, M ic he e l, t e sti fi e d a bo ut her inv e sti g a tio n a ndhe r d isc us sio ns wi th the childre n. She reported that the drug tests ta ken by the parties wer e neg ative. She desc ribed the children a s uncomfor table with some aspe cts of Husba nd’s ca re, suc h as his disciplinary methods and the f a c t th a t h e s o me ti me s s c r e a me d a t th e m, a n d s a idth a t th e y h a dd if f ic u lt y b e c o ming
acc ustom ed t o b ei n g around H usband so much bec ause he had not spent much time ar ound them befor e t h e p arties separated. Michee l noted that Husband ha d failed to maintain a land line telephone at his home, so the children ha d to use his cell phone to ca ll their moth er , wh i ch meant that th e c hil dr e n we re so me tim e s un able to c a ll he r. On e c hil d tol d Mic he e l private ly that sh e did not want to hurt Husband’ s fee lings, but she j ust did not want to spend as much time at Husband’s home.
The psy cholog ist, Dr. Ciocca, te stified about t he results of hi s psy cholog ical evaluations of Wife and Husband. D r. Ciocca stated that Wife’s mental status wa s within normal l imits

. Dr. Ciocca
c on c lud e d th a t H us ba nd

“ ha s th e sy mpt oms of

a pe rs on a lit y

dis or de r w ith na

rc iss ist ic , d e pe nd e nt, and antisocia l features.” H e described these conditions a s “an individual who ha s a tende ncy to be
more c oncerned about his own we ll-being than that of those a round him” and “ a person who
c ha ra c te ri sti c a lly

te nd s to be ma nip ulativ e , to be inc lin e d to be dis ho ne st or de c e itf ul wh e n it me e ts his or her g oals and who doesn’t nec essarily have a g reat deal of anx iety

or conc ern a

bout the fac t that they are brea king the rules.”

Gr a nd fathe r t e sti fi e d a s we ll. Gr a nd fathe r te sti fi e d that hi s u nd e rs ta nd ing wa s th a t, p ri or to J une 2001, Husba nd’s businesses we re doing well. He said that, in Dec ember 2001, he re ceive d a te le ph on e c a ll fr om Jame s Bu tle r, wh om h e ha d n e ve r m e t, i nf ormin g him

that So uth e rnWho le sa le
wa s o ut o f t

ru st w ith F ir st T e nn e sse e by app roxima te ly a mil lio n d oll ars . G rand fathe r s a id h e did
no t a tt h a tt i m e d i s c u s s t h e s i t u a t i o n w i t h h i s s o n ; r a t h e r , h e a n d B u t l e r w e n tt o m e e tw i t h F ir st Tenne ssee B ank off

icials reg arding the loan which G randf ather had guar antee d. I n Dec ember 2001, prio r to Fir st T e nn e sse e ’s fo re c los ur e on Hu sb a nda ndWif e ’s a sse ts, Gr a nd fathe r d e c ide d to purcha se the loan, to step into Fir st Tennessee ’s shoes and be come a cre ditor of Husband.-9-

At that time , Gr a nd fathe r be g a n pre pa ratio ns to ope n simil ar au tom ob ile wh ole sa le a ndre ta il businesses, subleasing space that had bee n used by Husband’s businesse s. J ames Bu t l er a ssisted Gr a nd fathe r i n s e tti ng up his ne w b us ine sse s, wh ile B utl e r wa s bei ng pa id b y Hu sb a nd ’s bu sin e sse s. There afte r, Gra ndfathe r hired Husband, Butler , and other employ ees of Hus b an d ’s d efunc t bu sin e sse s. Gr a nd fathe r s a id that he wa s u na wa re of the pay me nts ma de by Sou the rnWho le sa le to B utl e r andHu sb a nd ’s a tto rn e y s a ndfo rm e r e mpl oy e e s, a nda c kn ow le dg e d that the se a mou nts wo uld have r educe d the balance he had to pay to First Tennessee

. After he acquired Husband’s businesses by purcha sing the loan, Gra ndfat h er said, he ne ver r eviewe d the books to determine w hat caused the m to fail.

Gra ndfathe r stated that he sued Husband, i n p ar t , to preve nt other cr editors from g aining
a c c e ss t o H us ba nd ’s a sse ts. Whe n a sk ed if W if e wo uldha ve be e n o ne of tho se c re dit or s, Gra ndfathe r rep lied, “I

never looked at it in that light, but that would be true .” Gr andfather ackno w le d g e d

p ayin g betwee n $45,000 and $75,000 in Husband’ s liti g ation expenses for the divor ce pr oc e e din g s.

Fr ed Kr att (“K

ratt”) , one of Husband’s former employ ees, testified at t he trial. Kratt alleg ed that Hu sb a nd , de sp ite a

prior a g re e me nt, re fu se d to sig n o ve r s toc k inthe c omp a nie s a nda dis pu te
arose betwee n them. Kratt testified that when he pr essed Husband for the stoc k, Husband re sponded “that he c ould close t he place down, bankrupt it, shut it down, re open it under another c orporation
name a nd I

would g et nothing.”

Kra tt de s c r ib e d H u s b a n d a s v e r y s h arp , d e tail

- o r ie n te d a n d d r iv e n to a c q u ir e mo n e y . At dinner one night, Kratt said, Husband c ommented that he did not love what money could buy , but rathe r, “I love money

more than w hat it can buy . I want money .”

Kratt testified that, prior to the parties’ sepa ratio n , Hus band plac ed a r ecor ding de vice on their home tele phone and a GPS device on Wife’s ve hicle, in orde r to rec ord Wife’s telephone
c on ve rs a tio ns a ndtr a c k h e r ac tiv ity

. Af te r Wife fi le d for div or c e , Kr a tt sa id, Hu sb a nda ssu re d h im that Wife would rec eive nothing in the divorce . Kratt described H usb an d as cold a nd uninvolved with his children.

Kratt described nume rous ty p e s o f tr an s actions in Husband’ s automobile businesses in which a portion of the monies r ece ived wer e paid in ca s h an d n o t rec orded. H e said that Husba nd attempted to enlist his he lp in g etting Wife to r esolve the divorce by persua ding he r that Husband’ s businesses wer e in financ ial ruin. Towar d that end, he said, Husband showed him fina ncial statements for his businesses, a nd when Kratt asked about specific s and supporting documentation, Husband prof

essed not to know. Kr att had per ceive d Husband’s businesse s to be profitable, and was not persuade d.

Jame s B utl e r ( “ B utl e r” ) t e sti fi e d in de ta il a bo ut h is e xpe ri e nc e in the aut om obile bu sin e ss and his eva luation of the fina n ci al condit ion of Husband’ s businesses. Butler described the businesses as actua lly having been in poor financ ial condition at the time the Fir st Tennessee Ba nk-10-

loan closed, unbeknownst to Husband and to the B ank, since many of the proble ms stemmed from the dea lings of the manag ers on whom Husband relied.

T h e d ay after the two-w eek trial conclude d, the trial court issued a ca ref ul, detailed ora l ruling. As an initial comment, the trial judg e re marke d that Gra ndfathe r’s letter proposing settlement was a n “intrusi o n ” b y o ne who wa s not a party , and “ha d an over all chilling e ffe ct” on the pa rt ie s’ se ttl e me nt n e g oti a tio ns

. The trial court stated that the witnesses ca lled on behalf of Husband, and Husband himself, lacke d cre dibilit y . He obse rv ed that the c redibility of Husband and his witnesses “has be en impeache d on point after point afte r poi nt.” Dr. Ci occa ’s evaluation of Husband as nar cissistic, the trial judg e stated, had come through in Husband’s parenting , and even m ore so in his business and fi na nc ia l de a lin g s.
On t h e i s s u e o f w h i ch p ar t y s h o u l d b e d ee m ed t h e pr i m ar y re s i d en t i al p ar en t , t h e t ri al j u d ge fo un d th a t H us ba ndha d c on sis te ntl y de mon strat ed his de sir e to c on tr ol andha d r e g ula rl y pu t hi s own nee ds ahea d of the ne eds of his c hildren. He noted one child’s private ly stated conc erns a

bout spending so much time with Husband. The tria l judge observe d that three of the pa rties’ four children w ere daug hters, and c ommented that “a teena g e daug hter ne eds the pra ctical, e motional and nurturing g uidance that only a full-time mother can g ive.” Consequently , the trial court desig nated Wife as the primary

residential pa

rent a nd adopted Wife’s pr oposed par enting plan.

The trial c ourt then addr essed the division o f t h e m artial estate. It found numerous nonbusiness expenditures by

Husband to be dissipation of marital assets. These expenditures included $25,000 to private inve s t igators hired simply to hara ss Wi fe, ove rpayment of income ta x es in the amount of $15,000 by

filing se parately

instead of jointly , $2,750 paid to a prostitute, and the monies expended b y Hu s b an d for the proposed ela borate anniver sary

“date ” dinner

on a y acht in F lorida, afte r the pa

rties sepa rate d and divorce was imminent. These dissipated a ssets totaled $59,038.68, and the tria l court aw arde d half of that amount to W ife.
The trial judg e next e valuated the issue of dissipation with re spect to business assets. Af ter emphasizing the la ck of c redibility of Husband and the witness ca lled on his be half, the trial court observe d:

The only cre dible statement from any witness came from Fr ed Kr att who said, RustyRobinson is in Fred Kratt’s w ords, quote, driven. He is driven by the love of
m o n e y. Th e ne xt i nc re dib le state me nt is e qu a lly imp orta nt. Th a t is , Ru sty Rob ins on is
rec ounted as ha ving sa id, “I f it comes to divorce , h e wo u l d see that his wife g ot nothing.” The Court is compelled to a conc lusion that the gr eate r we ight of preponde ranc e of the e vidence weig hs most heavily in favor of the wife ’s theory , that the husband not only failed to protect a nd prese rve – the re’ s that word ag ain – the business and investments, but instead set in motion with the aid and assistance of his fathe r, Mac k-11-

Robinson, a chain of events that was designe d to destroy the automobile businesses for him and to obliterate the investments of the ma rital estate.

Th e tr ia l judg e tr a c e d in det a il the tim e lin e of Hu sb a nd ’s fi na nc ia l de c isi on s a ndthe de mis e of his businesses. He f

ound that, afte r Wife first at tempted to leave Husband in Oc tober 2000 a nd the parties e ng ag ed in fruitless counse ling, Husband set up the l oan ar rang ement with Fir st Tennessee B a nk , p le dg ing virtua lly

a ll o f the pa

rt ie s’ a sse ts andpu tti ng Gran dfat her in a po sit ionto a sse rt

a lien on those assets. The trial judg e found that First Tenne ssee Bank would not have c losed on the loan had the ne cessa

ry documentation shown that the bor rowe r, Southern Whol es ale, wa s in “the kind of financ ial shape depicted by ” Husband and his w itnesses. The trial court specific ally found unbelievable the af

fidavits and testimony

of Husband and of James Butler that, less than two months afte r t he First Tenne ssee loan closed, Husband’s automobi le bus inesses were in a “def icit situation” in the amount of appr ox imately $800,000.

Th e tr i a l c o u r to b s e r v e d t h a t , d u r i n g t h i s t i m e , H u s b a n d w i t h d r e w $ 5 9 7 , 0 0 0 f r o mh is businesses to pay

income taxes. I t also noted that, as to H usband’s stock trading acc ount, “he ha d
re a c he d le ve ls a s h ig h a s $ 5 mi lli on plu s d uring the y e ar b e fo re ; a ndhe ha d ca sh a va ila ble to p ut i nto these businesses.”
The trial judg e re marke d that, in Dece mber 2001, Husba nd and B utler said that they contac ted First Tenne ssee Bank to “disclose what they contend is a dire financ ial condition.” And y et the loan wa s not decla red in default by First Tennessee until Fe bruary 28, 2002. I t found that the re cord included no “empiric al evidenc e” of the claim of financ ial straits, only “the se lf-ser ving testimonyof witnesses whose cre dibilit y is more than suspect, and who say only that the businesses
are in shambles and ar e, quote, upside dow n.” The trial court a lso noted tha t , d u ri n g this ti me, Gra ndfathe r wa s busilysetting up h i s n ew au t o businesses with no examination of the books and
rec ords of Husba nd’s businesses. The trial court state d:

I ns te a d, he marc he d c on fi de ntl y a lon g , us ing his so n’ s e mpl oy e e , n a me ly Jim Butler , at his son’s company ’s ex p ense to set up the corporate structure to replac e Southern Wholesale, I nc., and the three Thrifty reta il businesses at the same loc ation with the same inventory ; the same furni t u re , fi x tures and e quipment; and for the most part , t h e same e mploy ees, e x cept f or those with the exorbitant salarie s, but including Jim Butler. C o n s i d e r i n g a l l o f

t h e e v i d e n c e , t h e C o u r ti s c o m p e l l e d t o t h e c o n c l u s i o n b y a preponde ranc e of the evidenc e that Russell Robinson and his fathe r, Mac k Robinson, pa rt ic ipate d in a

we ll- de vis e d a ndc are fu lly or c he str ate d sc he me to d e ple te thi s mari ta l e sta

te of its mos t va lua

ble a sse ts. Be g inning in at lea st October , 2000, not only does Russell Robinson glue the locks on the doors of the house, he beg an draining the busine sses of oper ating capital and fa iled or re fused to re inves t t h e n ecessary capital to allow f

or succ essful operation, thus allowing for a collapse of the businesses, rig ht into the waiting ha nds of his fathe r, K. Mac k Robinson.-12-

No t i n g t h at d i s s i p at i o n o f a s s et s ca n i n cl u d e t h e f ai l u re t o p re s er v e m ar i t al as s e t s , t h e t r i a l j u d ge found:

The c onclusion, based on the g reater we ight of the evid en ce , i s cl ea r. The husband absolutely

failed i n h i s d u ty

under TCA 34- 4-121(c )(5) to preserve and pr ote c t th e a uto mob ile bu sin e sse s, the 33 a c re s of la nd , a ndthe se c uriti e s a c c ou nts
as asse ts that by

all rig hts should st ill be a part of this marital estate for distribution by the Cou rt

. The trial c ourt found that the pay ments by Southern Wholesale to Gra ndfathe r we re “ nothing more than a ru se ,” a nd“ a

pa ss thr ou g h f

or inc ome ba ck to ” Husba nd . It app oin te d a sp e c ia l ma ste r t o v al u e t h e a u t o m o b i l e b u s i n es s es s et u p b y Gr an d fa t h er , fi n d i n g:
The Court is of the c onsidered opinion that these new c ompanies and businesse s, set up by [Grandfather] in prepar ation for his take ou t , i s i n rea litythe alter eg o of [Hu sb a nd ’s ] fo rm e r c omp a nie s. * * * I n the end, d ep en d i n g u pon what that eva luation turns out to be, 50 perc ent of that value will be c harg ed to the husband and cre dited to the wife.

The trial c ourt awa

rded Wife nine months of r ehabilitative alimony , and order ed one of the parties’ residenc es sol d to pay Wife’s attorney ’s fees. I t found t hat Husband was under -employ ed, working for Gr andfather, a nd imputed income base d on 50 hours of work per week pl us the $5,000 per month being draw n by Gra ndfathe r for no work, for a tot al g ross income of $10,625 pe r month. Child support was set based on that imputed income.

F ina lly , th e tr ia l c ou rt

fo un d Hus ba nd in crimi na l con te mpt fo r his de lib e rate a c ts to d e ple te the marital e state, and or dere d him to serve 30 day s in j ai l

. The trial c ourt stated that if Husba nd
wer e to “pur g e himself of a ll or any portion of hi s co n tempt,” the trial c ourt would consider suspending all or part of the jail sentence . When asked a bout the issue of civil contempt and se tting
a purg e pay ment for Husband to obtain relea se fr om jail, the trial court said that it “de termined that the re c or d w a s d e vo id o f s uf fi c ie nt e vid e nc e up on wh ic h th e Cou rt c ou ld m ake the fi nd ing a nddid not make that ruling . I t was consider ed and r ejec ted.”
Subsequently , on April 4, 2003, the t rial court enter ed a written order , decla ring the parties divorce d pursuant to Tennesse e Code Annotated § 36-4-129, and incorporating its Marc h 12, 2003 oral ruling

. The trial court tot aled the payments which were f ound to be dissipation by

Husband a nd
awa rded Wife ha lf, a total aw ard to Wife of $456,351.80. This am o u n t was cr edited to Wife as
a l i m o n y in solido . The o rder stated that Wife would be a war ded half of the va lue of Husba nd’s former businesses, now owne d by Gra ndfathe r, pending determination of the v al u e b y a special master. On June 9, 2003, this order was m ad e fi n al and appe alable pur suant to Rule 54.02 of the Te nn e sse e Rul e s o f C ivi l Pr oc e du re . Fro m th is o rd e r, Hu sb a ndno w a pp e a ls.-13-

On app e a l, H us ba ndsp e c if ie s f if tee n s e pa rate iss ue s to be c on sid e re d b y thi s Co urt. Husband’s a

rg uments, as re stated by

this Court, are that the trial court erre d in its refusal to enf orce the se ttl e me nt a g re e me nt pr of fe re d by Gr a nd fathe r; its de te rm inatio n that Gr a nd father “d id something wrong ” by sending the settlement offe r to Wife; its finding that Husband tra ded sec urities
acc ounts worth 5.7 milli on dollars in 2000 and 1.3 million doll ars in 2001; its finding that Husba nd’s 2000 in co me had va nished; its finding that Husband dissipated ma rital assets; its findings re lated t o H u s b a n d ’ s b u s i n e s s e s ; i t s g r a n to f a l i m o n y in sol

ido ; its calculation of child sup p o rt ; i ts awar d of private sc h o o l tu it io n f o r th e c h il d r e n ; i ts n a mi n g Wi f e a s p r im ar y

r e s id e n ti a l p ar e n t; it s a w ard of attorne y ’s fe es; and its finding Husband g uilty of criminal contempt. I n our analy sis be low, we have c ombined and g rouped the m acc ording to topic when fe asible to avoid re petition.

Ou r r e view o f this c a se is g ov e rn e d b y Rul e 13 (d ) o f the Te nn e sse e Rul e s o f A pp e llate Procedur e, which pr ovides th at review of finding s of fa ct by the trial court shall be de novo upon the re c or d o f the t ri al cou rt, a c c omp a nie d b y a pr e su mpt ionof

c or re c tne ss o f the fa c tua l f

ind ing s, un le ss the e vid e nc e pr e po nd e rate s o the rw ise . T .R. A. P. 1 3( d) ; Union Carbide Corp. v. Huddleston , 854 S.W .2d 87, 91 (Tenn. 1993)

. Th e pr e su mpt ion of

c or re c tne ss a

pp lic able to a tr ial cou rt ’s find ing s o f f a c t pu rs ua nt to T.R.A.P. 13(d) ap p l i es to child custody

. Hass v. Kni ghton , 676 S.W .2d 554, 555 (Tenn. 1984) ; Whit aker , 957 S.W .2d at 838. Further, a trial cou rt i s g rante d wide discre tion in a child custody
case b ec au s e the judg e “e njoy s a substantial adva ntag e in having the opportunity to see, he ar and evaluate t he parent’s suitability as custodians.” Herrera v. He rrera, 944 S.W .2d 379, 385 (Tenn. C t

. Ap p

. , 1 9 9 6 ) ( q u o t i n g M imms v . M

imms , 780 S.W .2d 739, 745 (Tenn. Ct. App.1989)) . A revie wing court will not interfer e with the trial c ourt’s dec ision ex cept upon a showing of abuse of discretion. Id.

A t ri a l c ou rt is a ff or de d w ide discret ion w he n d ivi din g the mari ta l pr op e rt y , a ndits distribution wil l be g iven “g reat weig ht” on appe al. See For d v . Fo rd , 952 S.W .2d 824, 825 (Tenn. Ap p. 19 97 ). Facto rs to be c on sid e re d in the e qu ita ble div isi on of

mari ta l pr op e rt y

are se t f orth i n Tenne ssee Code A nnotated § 36-4- 121.

The trial court is a ffor ded discre tion concerning w hether to awar d attorney ’s fe es in a divorc e case

. Se e Lo ng v . L ong , 957 S.W .2d 825, 827 (Tenn. App. 1997). On appea l, an appellat e court sh a ll not int e rf

e re wi th the tr ia l c ou rt ’s a wa rdof a tto rn e y ’s fe e s e xce pt u po n a sh ow ing of

a n a bu se of that discre tion. Id.

When the resolution of the issues in a case depends upon the truthfulness of w itnesses, the tr ia l ju dg e wh o h a s th e op po rtun ity to ob ser ve the w itn e sse s in the ir ma nn e r andde me a no r w hil e testify ing is in a far better position than t his Court to decide those issues. McCaleb v. Saturn Corp. , 910 S.W .2d 412, 415 (Tenn. 1995) ; Whit aker v. Whitaker , 957 S.W .2d 834, 837 (Tenn. App. 1997). The weig ht, faith, and cre dit to be given to any witness’s testimony

lies in the first instance w ith the trier of fac t, and the cre dibilit y acc orded will be g iven g reat w eig ht by the appellate court. Id .; In
re Est ate of Wa lto n v . Young , 950 S.W .2d 956, 959 (Tenn. 1997)

.-14-

As a thre shold issue, Husband ar g u es t h at t he trial c ourt err ed in re fusing to enforc e the settlement ag ree ment proposal embodied in G randf ather ’s letter to Wife’s counse l, marked “ ag ree d & a c c e pte d” a nd sig ne d b y Wif e a ndHu sb a nd ’s c ou ns e l. H us ba nda sse rt s Wif e a g re e d to the te rm s of this settlement offe r and that a valid and e nforc eable contra ct was f o rm ed

. On J uly

10, 2002, Husband pe titioned the trial court to enf orce this ag re em ent. Attache d to the petition were letters betwee n counsel for both parties, arg uing about the t erms of the ag ree ment and how the a g ree ment should be worde d. I n an order dated November 1, 2002, the t rial court denied Husband’s petition, fi nd ing that “ the re is n o b a sis to e nf or c e the Se ttl e me nt A g reement be c a us e it i s v oiddu e to i ts missing ce rtain esse ntial elements and, the ref ore, it is unenfor cea

ble.” Indeed, an offe r and
acc eptanc e which omits cruc ial terms is not an enfor cea ble contra ct. Doe v . HCA H ealth Sou rces of Tennessee , 46 S.W .3d 191, 197 (Tenn. 2001) . Fr om our revie w of Gr andfather’s of fer letter a nd the subsequent c orre spondence betwee n the parties’ attorney s, we find no err or in the trial judg e’s
c o n c l u s i o n t h a t i t w a s n o t a n e n f o r c e ab l e c o n tr a c t

. Husband fur th e r a r g u e s th a t the settlement ag ree ment should be enfor ced ba sed on a the ory of promissory

est o p p el

. This Court has defined promissory

estoppel as

Where one makes a

promise which the pr omi s o r s h ould rea sonably expect to induce action or forbe ara nce of a definite and substantial c hara cter on the part of the promisee , a ndwh e re su c h pr omi se do e s in fa c t in du c e su c h a c tio n o r f or be aranc e , it

is b ind ing if injusti ce c an be a voided only by enfor ceme nt of the promise.

Richardson v. Goodall Rubber Co., 1 9 8 6 W L 9 0 0 2 , * 2 (T en n

. C t

. A p p

. , 1 9 8 6 ) ( ci t i n g Fos te r & Creighton Co. V

. Wilson Cont

racting Co. , 579 S.W .2d 422, 427 (Tenn. Ct. App. 1978)). Husband
asserts that he relied on the ag ree ment to his detriment beca use afte r Husband and Wife signe d the ag ree ment, Hu s b an d canc elled a he aring befor e the divorc e re fer ee, the n Gra ndfathe r suffe red a substantial loss when he paid t he past due mortgag e pay ments of $5,552.08 on behalf of Husband. Husband a sserts that Wife rec eived the benef it of partial performance of the a g ree ment and is now
e sto pp e d f

ro m r e pu diatin g the a g re e me nt. First, pursua nt to a ruling date d October 31, 2001, Husband wa s under a court orde r to pay the mortg ag e on the marital residenc e while the divor ce pr ocee di n gs we re pe nding. A s such, Husband c annot n o w cl ai m that Wife rec eived a benef it of partial per formanc e that re sulted from
rec eiving mortg ag e pay ments under the settlement ag ree ment. Further, Husband cl ai m s t hat Gr a nd fathe r s uf

fe re d a su bs ta nti a l lo ss o f $5 ,5 52 .0 8. We no te that Gr a nd fathe r i s n ot a pa rt y to this
a c tio n a ndhe thu s c a nn ot c la im p ro mis so ry e sto pp e l a g a ins t Wif

e . F ina lly , a s to H us ba nd ’s c la im that he cancelled a

hearing be fore a divorc e re fer ee, w e find that Husba nd suffe red no substantial loss as a re sult of the canc ellation. The trial c ourt’s dec ision on thi s issue is affirme d.

I n a re lated issue, Hus b an d arg ues that the trial c ourt err ed in commenting that by writing t h e s et t l em en tp ro p o s a l l e t t ert o W i fe ’s co u n s el , Gr an d fa t h erm ed d l ed i n t h e d i v o rc e p ro ce ed i n gs betwee n Husband a nd W i fe and disrupted and doome d the settlement neg otiations between the parties. Reg arding Gra ndfathe r’ s ro l e, the tria l court stated that “ this . . . int rusion . . . by [Grandfather]

. . . into this entire matter spoiled the mediation and ha s had a c hilling ef fec t upon any eff orts at a ne g otiated or mediated settlement of this ca se.” O n appea l, Husband asse rts this was a n-15-

err or “to the extent that this finding impacted the Trial J udg e’s ruling in this matter.” Husband doe s not specify

how this observation impacte d the final ruling . We find that this comment by the trial judge was, in fa ct, just a comment. Moreove r, it is fully justified in the rec ord on appea l. We find
no err or as to this issue.

We consider Husba nd’s ar g uments relating to the di vision of m arital a ssets. Husband notes
se ve ra l c omm e nts a ndrh e toric a l qu e sti on s by the tr ia l judg e in his or a l rul ing , an d ar g ue s tha t th e se re pr e se nt e rr or

by the tr ia l c ou rt

. Husband a

rg ues that the trial c ourt found that he use d 5.7 milli on dollars in 2 0 0 0 and 1.3 milli on dollars in 2001 to trade stocks, w hen these fig ures r epre sented volume of trade s, not value
o f s t o ck , an d t h at i t w a s n o t a n i s s u e b ef o re t h e c o u rt

. Hu s b an d as s er t s t h at t h e t ri al j u d ge err oneously

implied that these fig ures r epre sented income for those y ear s. Other r emar ks by the trial court a re asserted by Husband to be erroneous findings of Husband’s income at given times, wher e thi s w a s n ot a

rg ue d b y e ith e r p art y . O n th e se iss ue s, the tr ia l ju dg e c omm e nte d a s f oll ow s:
Cou rt : Whe re is the sto c k po rt fo lio that g e ne rate d $5 .7 mil lio n in sto c k s ale s j us t the y ear befor e and at y ear ’s end 2000, and then would g ener ate $1,360,529 in sale s as re ported in the tax return for 2001.

Court: Ag ain, a question is r aised without a n answe r. Where is the $ 1

. 3 m i l lion? Where is the $1.8 million in cash that was draine d from these companies during the pr e vio us y e ar andbe c a me the re po rt able inco me on wh ic h [H us ba nd ] pa id i nc ome ta x?

. . . No t on ly that, it app e ars fr om the pr oo f in e vid e nc e that [Hu sb a nd ] had cash
a va ila ble fr om the sto c k tr a din g a c c ou nt t o h a ve p aid th e tax that w a s d ue . It a lso appea rs, that g iven t h e $ 1 .8 milli on in income dra wn from the c ompany plus the
s t o ck tra ding a ccount, that he had re ache d levels as hig h as $5 million pl us during the y e ar b e fo re ; a ndhe ha d c a sh a va ila ble to p ut i nto the se bu sin e sse s.
Court: As I

have analy zed Schedule D( 1), it appea rs that st o ck s we re sold over a period of time be g inning, if I rec all corr ectly , in November of the y ear

2000 up to –
ac tu a ll y , th e late s t d a y is s o me ti me in Ju n e o f 2 0 0 1

. T o ta l s a le s o f $ 7 2 4 , 474 and ref lects a loss of $104,945.

I f the Wunderlich Securities acc ount ha d $300,000 in r ound fig ures, is there any evidenc e in this recor d as to what ha ppened to the other $424,000 and chang e? I f so, wh a t is it.

The c omments of the trial court reg arding the stock portfolio, take n in total context , show that the trial judg e re fer

red to these as “le vels” of sa les, indicating that the trial judg e cle arly understood that this repre sented volume of sa les, as empha siz ed by Husband. The other que stions raised by the trial court are c le ar ly

rh e to r ic a l q u e s ti o n s r e g ar d in g w h a t h a db e c o me o f th e s e a s s e ts

. T h e s e f

ig u r es-16-

indicate the amount of money g ener ated by

Husband a nd his businesses prior to the filing of Wife’s divorce petition, as opposed to the steep plummet in money g ener ated a fter the filing of the divorce pe tit ion . In a

re la te d arg ume nt, Hu sb a nda sse rt s th a t th e tr ia l c ou rt e rr e d inde te rm ini ng that hi s income for

2000 had vanishe d beca use this ruling w as contra ry to the evidenc e. Ba sed on the
rec ord, these a

re inde ed valid comments. Howeve r, contra ry to Husband’s a ssertion, these we re not “finding s” in the sense that the trial court utili zed the fig ures to ca lculate e ither t h e am o u nt of dis sip a te d f

un ds or Hu sb a nd ’s e arn ing c apa c ity . We fi ndno e rr or on the se iss ue s.
Husband a

rg ues on appe al that the trial c ourt err ed in ruling that Husband dissipated marital
a sse ts. Hu sb a ndc ite s Wa rd v . W ar d , No. W2001-01078-COA-R3-CV, 2002 WL 31845229 (Tenn. Ct. App. Dec. 19, 2002) i n support of hi s position that Wife failed to prove that Husband dissipated
mari ta l a sse ts.

I n a leng thy

and thoroug h analy sis, the t rial court cited both the Wa rd decision and Le e R. Russ, Spous e’s Dissipation of Marit al Assets Prior t o Di vorce as a Factor in Divorce Court ’s Determin ation of P

r o p er t y Division , 41 A.L .R. 4 416, 420-21 (1985) . I n Wa rd , the Court’s th analy sis of dissipation i ncorpor ated the Russ article. The analy sis stated:

Trial courts must di stinguish betwe en what marital expenditures are wastef ul and self- serving and those whic h may be ill-advised but not so far remove d from “norma l” expenditures occ urring previously within the marital relationship t o rende r them destructive. I n de te rm ini ng wh e the r dis sip a tio n oc c ur re d, we fi nd tr ial cou rt s s ho uld consid e r th e f o ll o w in g : ( 1 ) w h e th e r

th e e v id e n c e p r e s e n te d a t t r ia l s u p p o r ts the alleg ed pu rp o se of the va rious expenditures, and if so, (2) whether the alleg ed purpose e quates t o dissipation under the circ umstances. [L ee R. Russ, Annotation, Spous e’s Dissipation of Marit al Assets Prior to Divorce as a Fa ctor in Divorce Court ’s Dete rm inati o n o f Property D ivision , 41 A.L .R. 4 416, 420-21 (1985) .] th The fir st prong is an objectiv e t est . To satisfy this test, the dissipati ng spouse ca n bring forwa

rd evidenc e, such as rec eipts, voucher s, claims, or other similar e vidence that independe ntly

sup p o rt t h e p urpose a s alleg ed. The second pr ong require s the
c ou rt to m ake a n e qu ita

bl e det erm inatio n b a se d u po n a nu mbe r o f f

a c tor s. Th os e fac tors include: (1) the typicality of the e x penditure to this marria g e; (2 ) the b en ef ac t o r o f t h e e x p en d i t u re , n am el y , wh et h eri t p ri m ar i l y b en ef i t t ed t h e m arri age or primarily

benef itted the sole diss i p ating spouse; (3) the pr ox imityof the expenditur e t o t h e brea

kdown of the ma

rital relationship; (4) the amount of the expenditure.

Wa rd , 2002 WL 31845229, at *3. I n apply ing the Wa rd analy sis to the facts of this ca se, the trial court fir st noted that alleg ations of dissipation must be proven by a preponde ranc e of the evidenc e, me a nin g “ that a mou nt o f e vid e nc e that ca us es th e trie r o f f a c t to c on c lud e that a n a lle g a tio n is probably true. . . . I f the evidenc e, on a particula r issue, is e qually

balanc ed that issue has not be en proven by a pre pondera nce of

the evidenc e; and the pa

rty having the burde n o f p ro v i n g t hat issue has fa iled.” Categ orizing the marital assets as either business o r p er s onal, the trial c ourt then-17-

discussed and e valuated e ach of the seve nteen pe rsonal mar i tal assets that Wife alleg ed Husba nd dissipated. The trial c ourt ca ref ully detailed its re as o ning, analy zing documenta ry evidenc e and testimony , and we ighing the cr edibilityof the witnesse s. Some items alleg ed by Wife were found to be dis sipation, others we re not. Ultimately , the trial court concluded that the following persona l marital asse ts were dissipated by Husband: 1. $25,000 paid by

Husband to private detec tives to harass Wife. 2. $15,000 for ove rpayment of income ta x es du e t o fi l ing se parately instead of j o i n t l y. 3. $5 00 fo r c utt ing Wif

e ’s c lothin g a ft e r an a

rg ume nt. 4. $2,750 paid by

Husband for

service s of a pr ostitut e. 5. $15,788.68 for a

rra ng ements for

the ill-fated r econc iliation trip t o Florida

. Th e s e p e r s o n a l i te ms to ta le d $ 5 9 , 0 3 8

. 6 8 , a n d f if ty p e r c e n t o f

th a t amo u n t, o r

$ 2 9 , 5 1 9

. 3 4 , w as awa rded to Wife.

I n its analy sis, the trial court plainly applied the c orre ct leg al standar d. Fr om our revie w of the re cord on the evidenc e on ea ch item of dissi p at i o n , gi ving a ppropriate defe renc e to the trial court’s de terminations of cr edibility , we find that the evidenc e cle arly preponde rate s in favor of the trial court’ s findings. The decision of the trial court is af firmed on this issue.

We next addre ss issues related to Husband’s automobile businesses. Initially , Husband arg ues that ce rtain finding s by the t rial court demonstrated that the t rial j udg e did not understand the mecha nics of the $3.5 mi l l i o n loan from F irst Tennesse e B ank and the subsequent buy out by Gr a nd fathe r. Fir st, Hu sb a nda lle g e s th a t th e tr ia l c ou rt fo un d th a t G rand fathe r b or ro we d o nly $88,000 in order to bring Husband’s business entities back into trust with First Tennessee Bank, and that th is f a c tua l f ind ing wa s e rr on e ou s. Se c on d, Hu sb a ndc on ten ds th at the t ri a l c ou rt e rr e d in finding that Gra ndfathe r sold o ff co l l ateral and re cover ed most of the $1,088,000 loan ba lance , bec ause the se asse ts were sold before Gra ndfathe r took over the loan and we re use d to reduc e the loan balanc e. Husba nd asserts that G randf ather liquidated the 33 acr es on Pisgah Road and the stock portfolio and the businesse s’ inventory of automobiles in order

to reduc e the loan to $1, 0 8 8 , 0 00. We evaluate these issues in turn.

We n ote fi rs t th a t H us ba nd mis state s th e fi nd ing of thetr ia l c ou rt ; th e tr ia l ju dg e didno t in fa c t f ind that Grand fathe r bor

ro we d only $8 8, 00 0 in ord e r to g e t Hus ba nd ’s bu sin e sse s bac k intrus t wi th F ir st T e nn e sse e . Rathe r, the tr ia l cou rt c a lc ulate d $88 ,0 00 a s the a mou nt S ou the rnWho le sa le was out of trust with Fir st Tennessee and then we nt on to note tha t Gra ndfathe r borr owed $1,088,000.

The trial court then obs erve d that one condition of obt aining the loan with Fir st Tennessee was that Husba nd pay off $1,000,000 to othe r cre ditors w ith a portion of the loan. The trial court noted that Gra ndfathe r paid $1,088,000 to pur chase Husband’s loa n from F irst Tennesse e. The trial court re asoned that because Husband ow ed one million at the inception of the lo an an d it took $ 1 , 0 8 8 , 0 0 0 t o p a y

o f f t h e l o a n , t h e n t h e l o a n w a s o n l y “ o u to f tru s t ” i n t h e a m o u n to f

$ 8 8 , 0 0 0

. IfW e n ot e t hat t he t r i al cour t found t hat t he do cumen t pur po r t i ng t o s how t he def i ci enc y bal anc e of

$16 7, 89 4 l ack ed 3 cred i b i l i t y

. T hi s f

i nd i ng was based on t he t est i m o ny of Ji m B ut l er, who t est i f i ed t hat , al t ho ugh he prep ared t he d o c u m e n t, the a m o u n ts sh o w n d id no t ha v e su p p o rting d o c u m e n ta tio n a n d w e re , i n so m e insta n c e s, his b e st gu e ss. O f pa rt i cul ar i nt erest i s t he acco unt s recei vab l e am o unt of o nl y $6
, 5 8 0

. B ut l er s t at ed t hat he did no t i ncl ud e any
r ece i vabl e ove r t hi r t y day s pas t due i n t hi s t ot al

— he es s ent i al l y “ wr ot e of f t hes e a mo un t s

. ”

-18- this calculation does not ac curately ref lect the c ondition of the loan, a s set forth below, w e, nevertheless, find that t h e trial c ourt had a n overa ll accur ate unde rstanding of the fa cts, and a ny misstatement in this reg ard did not af fec t the trial court’ s conclusion or the outc ome of this issue.

After a car eful revie w of the rec ord, including the exhibi ts, the fac ts a ppear to b e the fo l l o wi n g:
Gr a nd fathe r t e sti fi e d th a t the pay off to F ir st T e nn e sse e wa s a pp ro xima te ly

$1 .7 mil lio n in Dec ember

2001. I t should be noted t hat wit nesses ofte n testified in approximate amounts rather than exact numbers. The rec ord shows that Gra ndfathe r borrowe d $1,088,000 to ta ke over the loan from First Te nnessee Ba nk. Acc ording to Gra ndfathe r’s testim ony , $1,088,000 ref lected the balanc e due to First Tenne ssee a fter liquidation of the 33 a cre s on Pisgah Road and the sec urities acc ount owned by Hu sb a nda ndWif

e

. Gr a nd fathe r te sti fi e d that a ft e r he too k ov e r the loan, he be g a n to liq uid a te the re maining a ssets—those of Husband’ s businesses. Gra ndfathe r explained that afte r all of the
a sse ts w e re liq uid a te d, a

de fi c ie nc y

ba la nc e of

$1 67 ,8 94 re ma in ed, for

wh ic h h e fi le d s uit

a g a ins t Husband.

T h e v a l u e s o f

t h e 3 3 a c r e s a n d t h e s e c u r i t i e s a c c o u n t( $ 4 0 4 , 4 5 7 a n d $ 2 5 7 , 3 9 0 , r e s p e c t i v e l y)
are then adde d to the amount that Gra nd fa t her bor rowe d to pay

off F irst Tennesse e ($1,088,000)

. Th e se fi g ur e s to ta l $1 ,7 49 ,8 47 or app ro xima te ly $1 .7 mil lio n, a s a lle g e d b y Gr a nd fathe r. Th is s um, of cour se, does not include the value of the assets of the busines s es, which G randf ather testified
wer e liquidated af

ter he boug ht the First Te nnessee loan. Then, a fter liquidating the assets of the businesses, Gra ndfathe r s u ed for the de ficienc y balanc e of $167,894. A s such, the trial c ourt’s
overa ll statement that Grandf ather rec overe d most of the $1,088,000 pay off to F irst Tennesse e thr ou g h s e lli ng of

f the a sse ts a

pp e ars to b e c or

re c t. 3

Hu sb a nda lso arg ue s o n a pp e a l th a t th e tr ial c ou rt fo un d th a t H us ba ndsu bmi tte d f a lse financ ial statements to First Te nn es s ee Ba n k in order to obtain the $3.5 million floor plan loan. Hu sb a ndc ite s to the fo llo wi ng state me nt b y the tr ia l c ou rt : Considering all of the e vidence on the subject, the Court is absolutely convince d that it is i nconce ivable that on Jul y 10, 2001, First Te nnesse e Ba nk would have c losed on all loans to Southern Wholesale, I nc., if it wer e in the kind of financ ial shape a s depicte d b y

Ru s s e ll Ro b in s o n , Wa

r lo w a n d B u tl e r

a s th e y w o u ldh a v e u s b e li e ve ex i s t ed o n t h e d at e o f c l o s i n g.
Husband a sserts that the Court’s finding was not supported by the pre ponderance of

the evidenc e and should be re verse d.-19-

Fr o mo u r r ea d i n g o f t h e r ec o rd , i tap p ea rs t h at Hu s b an dm i s s t at es t h e t ri al co u rt ’s fi n d i n g. As n o te d ab o v e , th e tria l c o u r t s tate d th r o u g h o u t it s ru li n g th a t it d id n o t b e li e v e th e te s ti mony of Husband or the witnesses who testified on H usband’s be half. Seve ral of Husband’ s witnesses testified that Husband’ s business w ere found to be in a larg e def icit positi on shortly

afte r Husband obtained the $3.5 milli on loan from F irst Tennesse e B ank. The trial court noted that the one thing on which the witnesse s who testified on Husband’ s behalf a g ree d was

that an infusion of c apital at that point in time was all that wa s rea lly neede d to . . . save the companies. That would have be en true even i f o n e s hould believe the doomsday

tes t imony

that was g iven by

eac h of those witnesses, w hich the Court fra nkly does not ac cept a s true.

Th us , th e re c or d s ho ws that th e tr ia l c ou rt did no t f indthat f inanc ia l st a te me nts su bmi tte d to F ir st Tenne ssee, showing a positive net worth f or Husband his businesses, were untrue. I ndeed, the trial court found the converse to be true. The trial court deemed untrue the statements made by Husband and his witnesses, w h o t es t i fi ed that the businesses we re f ound to be fa iling shortly afte r the $3.5 mil lion lo an c los e d. F ro m ou r r e vie w o f the e vid e nc e , w ith du e de fe re nc e to the c re dib ili ty determinations bythe trial court, we conc lude that this finding is amply supported in the re cord.

Ne xt, H us ba nda lle g e s th a t th e tr ia l c ou rt e rr e d in fi nd ing that H us ba nddis sip a te d b us ine ss assets re lated to his automobile businesses. The tria l court found that Husban d d i ssipated the fo llo wi ng bu sin e ss a sse ts: 1. $404,457.11 for the va lue of land ow n ed b y Husband a nd Wife and pledg ed as
c oll a te ra l f

or bu sin e ss l oa ns

. 2. $257,390.97 for the va lue of the se curities ac count, pledg ed as collater al for the business loan. 3. $50,000 g iven to Mack Robins o n as consider ation for g uaranteeing Husband’s business loan. 4. $12,500 as re pay ment of a loa n from Mac k Robinson. 5. $ 8 5 ,000 paid to an employ ee of Husband’s business while the employ ee se t up mirror c orporations for Mack Robinson. 6. Fifty perc ent of the automobile businesses now owned by M ac k R obinson, the value to be de termined by a spec ial master.

On the dissipation of the automobile businesses, in a c lassic under statement, the trial c ourt noted that th e “ a na ly sis [wa s] c omp lic a te d b y a c c ou nti ng iss ue s [th a t] are so me tim e s d if fi c ult to understand and by

the context of this is sue as it interre lates with other issues for trial

. ” T he trial court then c ited Tennes s ee C o d e Annotated § 36-1-121 ( c) ( 5), which pr ovides: (c) I n making equitable division of marital property , the court shall consider all rele vant fac tors including

. . . (5) The c ontribution of eac h party to the acquisition, preserv ation , ap p re ciation, depreciation or dissipation of the marital or sepa rate property . . .” T.C.A. § 36-1- 121 (c) (5) ( emphasis adde d).-20-

The trial court noted that the phra se “pr eser vation” wa s espec ially rele vant to the ca se at ba

r a ndfo un d th a t:

the husband in this ca s e failed to do a ll that any rea sonably

prudent businessman should have done and woul d have done if properly motivated—and y ou may un de rl ine tho se thr e e wo rd s—un de r the c ir c ums ta nc e s th e n a ndthere e xistin g in
or de r t o p re se rv e

. . . the ma jor mari ta l a sse ts c on sis tin g of no t on ly the a uto mob ile bu sin e sse s, bu t the inv e stm e nts a c qu ir e d fr om the fr uit s o f the a uto mob ile bu sin e ss, such as the stock investment portfolio and even t he 33 ac res of land adjac ent to the marital re sidence on Pisgah Road wher e the parties had hope d to build their dream home.

The trial c ourt emphasized the lac k of c re d ibilit y of Husband and witnesses ca lled on Husband’s be half, a nd found partic u l ar l y cre dible the testimony that Husband wa s driven by love
o f m o n e y , a n d t h a t , i n t h e e v e n to f d i v o r c e , H u s b a n d w o u l d s e e t o i t t h a t W i f e r e c e i v e d n o t h i n g

. It conclude d:
[T] hat the husband not only failed to prote ct and pr eser v e–there’s that wor d ag ain–th e b u s in e s s a n d in v e s tm e n ts , b u t i n s te a d s e t i n mo ti o n w ith th e a idand assistance of his fathe r, [Grandfather], a cha in of eve nts that w as desig ned to destroy the automobile business for him and to obliterate the marital estate.

Husband now a sserts that Wife did not provide “ha rd evide nce” that Husband dissipated assets and did not mee t her burde n of proof . I n Wa rd v . W ar d , 2002 WL

31845229 (Tenn. Ct. App. Dec . 19, 2002), this Court overturne d the trial court’s decision on leg al g rounds and r emande d for a dete rmination of whethe r the fa cts prese nted at trial supporte d the p l ai n t i ff ’s alleg ation. Wa rd , 2002 WL 31845229, at *5. On re mand, the trial court ag ain ruled for the defe ndant and the plaintiff
app e a le d a g a in, arg uin g that th e de fe nd a nt did no t pr od uc e ind e pe nd e nt e vid e nc e , s uc h a s r e c e ipt s, documents or ot h er simil ar e vidence to support his posit ion. Wa rd v . W ar d , 2004 WL

787158 (Tenn. Ct. App. April 12, 2004).

I n the sec ond appeal , t h is Court ex panded on the analy sis in the prior Wa rd opinion, and sp e c if ie d th a t the re is no ru le re qu ir ing the pr od uc tio n of doc ume nts or sim ila r ev ide nc e a ndthat a trial court may rely solely on witness testimony

. Wa rd , 2 0 0 4 W L 7 8 7 1 5 8 , a t* 5

. M o r e i m p o r t a n t l y, “whe n the re solution of issues in a case depends upon the truthfulness of w itnesses, the trial judg e, wh o h a s th e op po rtun ity

to o bs e rv e the wi tne sse s in th e ir ma nn e r andde me a no r w hil e te sti fying , is in a far better position than this Court to decide those issues.” Wa rd , 2004 WL 787158, at *6 (citing McCaleb v. Saturn Corp. , 9 10 S.W. 2d41 2, 41 5 ( Te nn . Sp . Wo rk e rs Comp. 19 95 ); Whit aker v. Whit aker , 957 S.W .2d 834, 837 (Tenn. Ct. App. 1997))

.
I n the instant case , the re cord c onsists of twenty -three volumes and eig hty -eig ht exhi bits and is replete w ith factua l information reg arding the automobi le bus iness. I n fac t, the trial court state d that he re fe rr e d to “ six le g a l pa ds fu ll o f n ote s ta ke n o ve r the c ou rs e of

the se tw o p lus we e ks of

tr ia l” in m akin g his de c isi on . F urthe r, the tr ia l c ou rt ba se d the de c isi on , inpa rt , o n th e la c k o f c re dib ili ty-21-

of Husband and the witnesses who testified on his be half. After thoroug h revie w of the rec ord, and wi th d ue de fe re nc e to the tr ia l cou rt ’s de te rm inatio ns of c re dib ili ty , we fi nd that the e vid e nc e fu lly
su pp orts the tr ia l cou rt ’s c on c lus ion that H us ba ndor c he str a te d th e “ de mis e ” of his a uto mob ile businesses and Gra ndfathe r’s acquisition of the businesses from him, in order to pr event Wife from
rec eiving any

value f rom them in the di vorce

. As a result, we find no er ror in the de cision below.

H u s b a n d n e x tar g u e s t h a tt h e t r i a l c o u r te rr e d i n a w ar d i n g a l i m o n y in solido from marital
a sse ts no lon g e r o wn e d b y the sp ou se s. Hu sb a ndc ite s Ale shir e v . Al e shir e , 642 S.W .2d 729 (Tenn. Ct. App 1981) in support of h i s p o s i t i o n

. I n Ale shir e , the husband be g an his medica l residenc y when the pa

rties divorce d. Id . at 731. The w ife ha d a full time job as a c olleg e prof essor. Id. At t h e t i m e o f

t h e d i v o r c e , t h e h u s b a n d h a d n o a s s e t s f r o mw h i c h t o a w ar d a l i m o n y in solido

. Id . The parties a g ree d on a division of t heir joi nt property with the wife ke eping approximately ninety five p er ce n t o f the assets. Id. at 734. The w ife then a rg ued that the husba nd’s ea rning capa city , based
o n h i s m e d i c a l d e g r e e , w a s p r o p e r t y o u to f w h i c h a l i m o n y in solido could be a war ded. Id . at 732. O n ap p e a l , t h i s C o u r t h e l d t h a t“ a l i m o n y in solido should not be awa rded out of an expectation of future e arning s.” Id. a t7 3 3

. T h i s C o u r tw e n t o n t o n o t e t h a t

t h e a w ar d o f

a l i m o n y in solido from fu tur e e arn ing s may

be ne c e ssa

ry wh e re “ a sp ou se int e nti on a lly

dis po se d o f his or he r t a ng ibl e a sse ts i n o r d e r t o d e p r i v e t h e o t h e r

s p o u s e o f

a l i m o n y in solido .” Id. at 733.

Ale shir e h o l d s t h a t , “ a s a

g e n e r a l ru l e , a l i m o n y in solido should be paid ou t of the oblig or spouse’s pre sent estate and should not be awa rded out of an expectation of the o b l i go r’s futur e earnings.” Abe rna thy v . Ab e rna thy , No. M1999-00891-COA- R3-CV , 2000 WL 827949 at *7 (June 27, 2000). To simplify , Ale shir e s t a t e s t h a t a l i m o n y in solido should be calculated based on the prese nt estate instead of the e x pectation of future e arning s. Se e Abe rna thy , 2000 WL 827949 (June 27, 2000). Howe ver, in c ircumstance s such as this, wher e a spouse dissipated marital asse ts by failing to preserve them, the a war d is calculated based on what the marital estate would ha ve bee n absent the dissipation, and the trial court may then orde r that the oblig or spouse pay the awa rd of
a l i m o n y in solido may

be pa id from future earnings. See id. I n the pre sent ca se, the t ri al court
awa rded Wife a portion of what would have been in the marital estate had Husba nd not dissipated t h e a s s e t s o r

b y f a i l i n g t o p r e s e r v e t h e m

. A s a r e s u l t , w e f

i n d n o e rr o r

i n t h e a w ar d o f

a l i m o n y in solido

.
I n a

sim ila r a rg ume nt, Hu sb a ndc ite s Fla nnar y v . Fl anna ry , 121 S.W .3d 647 (200 3 ) as support for his arg ument that missing funds may not be consider ed marital property . I n Fla nnar y , the husband hid $48,000 in a dra wer in anticipation of the Y2K scar e. Id

. at 6 4 9

. T h e h usband
s t at ed t h at h e i n t en d ed t o re -d ep o s i tt h e f u n d s af t er J an u ar y 2 0 0 0 b u td i s co v er ed t h e f u n d s m i s s i n g. Id. Th e tr ia l c ou rt

he ld that th e mon e y

in the dr a we r wa s marita l pro pe rt y a nd g a ve the wi fe c re dit for half of t he funds. Id. at 650. The Te nnessee Supreme Court re verse d, holding that the missing fu nd s w e re no t pa

rt of the mari ta l est a te be c a us e ne ith e r p art y c ou ld a c c ou nt f

or the ir wh e re abo uts

. Id. Howeve r, on remand, the trial c ourt was a llowed to consider the husband’s c are less handling of the funds in the distribution of the marital prope rty

. Id. at 651. Fla nnar y , h ow e ve r, is i na

pp os ite b e c a u s e th e tria l c o u r t in Fl annary found that neither party knew the w here abouts of the money —neither pa

rty was c harg ed with dissipation of those funds. I n the case at bar, the trial court found that Husband pur

posefully dissipated marital asse ts, half of whic h rig htfully belong ed to Wife.H usband ’ s m o nt hl y s al ary i ncreased f rom $4
, 0 0 0 t o $4
, 5 0 0 af t er he began w o rki ng fo r G randfat her. 4

-22- Ba sed on the circumstances of the case at bar, we find no err or i n awa rding half of the dissipated assets to Wife.

Hu sb a nda lle g e s th a t th e tr ia l c ou rt e rr e d in imp uti ng g ro ss m on thl y in come of

$1 0, 62 5 to him, using that fig ure to c alculate child support. Husband further a lleg es that the trial c ourt err ed in ordering Husband to be r esponsible for the costs of private schools for the c hildren. T h e trial court found that Husband wa s willfullyand voluntarily undere mploy ed and, a s a re sult, im puted income to him.

Husband a

rg ues that the re cor d does not support the trial court’s finding of under employ ment and that the de cre ase in his income wa s due sol ely to the failure of his business. Howe ver, the trial
c ou rt ma de sp e c if

ic fi nd ing s of fa c t re g ard ing the do c ume nt pur po rt ing to s ho w H us ba nd ’s inc ome a s a n e mpl oy e e of

Gr a nd fathe r’ s auto mob ilec omp a ny . T he do c ume nt i nd ic a te d th a t H us ba ndwo uld
earn $ 4 , 0 00 per month plus $100 for e ach c ar sold over forty per month. The trial court stated,

“ [l ]o o k a t th e h a n d w r it in g o n th a t d o c u me n t. I t s e e ms to th e Co u r t t o b e inth e h a n d o f [H u s b a n d ],
no t [th e ma na g e r of

Gr a nd fathe r’ s auto mob ile bu sin e ss]. Th e Cou rt be lie ve s th a t [Hu sb a nd ] co uld have w ritten in whateve r amount he w anted, a nd it would be paid to him.”

Husband testified that “prior to the se parat ion he normally worke d 50 hours a we ek, sometimes even 60 hour s per we ek.” The trial court also noted the stateme nt attributed to Husband that “[i] f it comes to divor ce, he would see that his w ife g ot nothing .” F urther, the trial court f ound that the companie s now owned by Gra ndfathe r, which now employ Husband, are merely the “a lter eg o of [Husband’s] former c ompanies.”

The trial c ourt then found that Husba nd was c urre ntly being paid $4,500 for a

forty -hour 4 work week. I t then i mputed income based on this rate for a n additional 10 hours per wee k, or $1,125 ($ 4, 50 0 d ivi de d b y

40 ho ur s, tim e s 1 0 e xtra ho ur s)

. Th e tr ia l cou rt a lso a dd e d to Hus ba nd ’s inc ome the $5,000 per

month curre ntly

ostensibly

paid to Gra ndfathe r for which he does no work. We f ind
a mpl e e vid e nc e in the re c or d to su pp ort th e tr ia l c ou rt ’s fi nd ing s. As a res ul t, we f indno e rr or

in imputing this income level to Husband or in or dering Husband to pay for private school e x penses for the c hildren.

Hu sb a ndarg ue s th a t th e tr ia l c ou rt e rr e d inna min g Wif

e a s p ri mary

re sid e nti a l pa

re nt. Hu sb a nda sse rt s th a t T e nn e sse e la w c re a te s a pr e su mpt ion in f

a vo r of c on tin uity

of pla c e me nt. Pl ac e nia v . P

lac e nia , 3 S.W .3d 497 (Tenn. Ct. App. 1999). Husband note s that the parties ha d equal pa re nti ng tim e a ft e r the se pa ratio n a ndpe nd ing the ou tc ome of the lit igatio n, a ndarg ue s th a t th is equal pa renting time should be continued based on the presumption of continuity . Husband further
asserts that the trial court g rante d Wife primary custody beca use three of t he four

minor children a

reT .C .A

. § 3 6

- 6

- 4 1 2 st ates: 5 It i s t he l egi sl at i ve i nt ent t hat t he gend er of t he p art y s eeki ng t o be t he p ri m ary res i d ent i al pa rent sha l l no t give rise t o a p resu m p t i o n o f p are ntal f

i t ne ss o r ca use a p resu m p t i o n in f av o r o f o r ag ainst

su c h p a rty.

T .C .A . § 3 6 -6 -4 1 2 (2 0 0 1 .)

-23- fema le, and a

rg ues t hat t his is contra

ry to Tenne ssee law. The applicable Tennessee statute sets out 5 six teen fac tors to c onsider when making a determination of a permanent par enting plan. See Tenn. Code Ann. § 36-4- 404 (2001). From the re cord, it is undisputed that, prior to the parties’ sepa ration, Husband “ did not participate in the day -to-day activities of the children or the car e for the childre n. . . .” While Husband clear l ymade e fforts to become involved with the c hildren pending the outcome of the litigation, “c ontinuity of pl ace ment” would favor having Wife remain the c hildren’s primary car eg iver. This i s buttressed by the evidence of the children’ s discomfort with Husband’s p ar en t i n g.

Moreove r, under

Tenn es s ee Code Annotated § 36- 4-404(b) (9), a nother fa ctor for consideration is t he “char acte r and phy sical and emotional fitness of each parent as it re lates to ea ch pare nt’s ability

to pare nt or the we lfare of t he child.” T .C.A. § 36-4-404(b) (9) ( 2001). I n analy zing the issue of c ustody , the trial court noted that the psy cholog ist who evaluate d both parties, Dr

. Ciocca, de termined that Husband ha s a nar cissistic personality . The trial c ourt cited Dr . Ciocca’ s te s ti mo n y a n d s tate d th a t it is “ d if f ic u lt f o r n ar c is s is ti c s to r a is e c h il d r e n th a t, q u o te , f it within a culture, e nd q u o t e, t o use Dr. Ciocc a’s wor ds. And ac cording to Dr. Ciocca , narc issist ics have a tendenc y to put their own nee ds ahea d of those of the children.”

Th is e va lua

tio n o f H us ba ndis c le arl y bo rn e ou t by

the e viden ce in this c a se . T he re is
su bs ta nti a l e vi den c e of

Hu sb a nd ’s dis int e re st i n h is c hil dr e n a nd his ne e d to c on tr ol Wi fe prior to the parties’ sepa

ration. I n its oral ruling , the t rial judg e cited H usband’s discontinuanc e of his land line telephone a fter the separ ation, leaving the childre n depende nt on his cell phone to call Wife, and his deny ing the children use of his c ell phone for this purpose on occ asion. The tria l court stated, “not only is this evidenc e of that narc issist ic control, but it is also evidenc e of putti ng his own needs ahea d of the ne eds of his childre n.”

Moreove r, Husband’ s choice to dismantle and obli terate t he marital estate rather than having Wife rec eive a ny

portion of it shows narc issist ic beha vior and c hara cter traits that are not conducive to h e a lth y pa

re nti ng

. De sp ite a ny c omm e nts by the tr ia l jud g e re fe rring to g e nd e r, the re c or d f ull y su pp orts the tr ia l c ou rt ’s de c isi on to d e sig nate Wif e a s th e prima

ry re sid e nti a l pa

re nt.

Husband a

rg ues that the trial c ourt err ed in or dering him to pay Wife’s attorney ’s fe es and in ordering the s ale of Husband’s house to partially satisfy this debt. Husband asserts that W ife wa s awa rded suf ficient a ssets from wh i ch t o p ayher ow n attorney ’s fe es and that Husband wa s not
a wa rd e d a sse ts f

ro m w hic h to pa y

e xpe ns e s a ndfe e s.

I n th e ins ta nt c a se , th e tr ia l c ou rt fo un d th a t H us ba nddis sip a te d s ub stantia l ma ri ta l a sse ts. A larg e portion of Wife’s a war d was a cre dit for these dissipated a ssets—not liqui d assets. Husband-24-

wa s als o c re dit e d w ith ha lf of the dis sip a te d a sse ts— a g a in n ot l iqu id a sse ts. Th e sa le of the ho us e a w ar d e d t o H u s b a n d p r o v i d e s a p o r t i o n o f

t h e l i q u i d a s s e t s n e e d e d t o p a y W i f e ’ s a t t o r n e y.

I n a somewhat confusing ar gu m en t , Husband c laims that the sale of the house could not completely

fulfill his obli g ation to pay Wife’s attorney ’s fe es and thus it was e rror to order the sale. Hu sb a ndc ite s n o auth ority fo r this po sit ion a ndwe fi ndthat th e arg ume nt h a s n o me ri t.

Th e de c isi on of

wh e the r t o a wa

rda tto rn e y ’s fe e s is wi th in the dis c re tio n o f the tr ia l c ou rt

. Richardson v. Richardson , 969 S.W. 2d 93 1, 93 6 (T e nn . Ct. A p. 19 97 ); She rro d v . W ix , 849 S.W .2d 780, 785 (Tenn. A pp. 1992). F urther, an appellate co u rt wi ll not overturn a tria l court’s a war d of attorney ’s fe es abse nt an abuse of discre tion. Garfinkel v. Garfinkel , 945 S.W .2d 744, 748 (Tenn. Ct. App. 1996). I n this c ase, the trial court awa rded attorney ’s fe es to Wife afte r finding that Wife “has a very well-de monstrated nee d for those expenses and [Husband] has a very well-de monstrated
abil ity to p a y .” We f

indno abu se of

dis c re tio n in the a wa

rdof a tto rn e y ’s fe e s or i n th e or de r t o s e ll the re sidence

. Husband a

rg ues that the trial c ourt err ed in finding h i m gu i l ty of criminal contempt when it did not find hi m guilty

of civil contempt.

The trial co urt found that “the behavior of [Husband] has been in utter disre g ard f or the order s and writs of this Court” and, as a result, held him in criminal contempt. When asked about the civil contempt cha

rg es, the trial c ourt stated

I considere d it and determined that the re cord w as devoid of suf ficient e vidence upon which the Court could make that finding and did not make that ruling . I t was
c on sid e re d a ndre

je c te d. Th a t’ s not to say that at some day fu rthe r dow n the ro a d, if there should be a motion, petition, or wh at ever based on pr oper ple ading s and
e vid e nc e , th e Cou rt

wi ll c on sid e r i t.

Hu sb a nda lle g e s th a t th e tr ia l c ou rt de c lin e d to fi nd Hu sb a nd g uil ty of c ivi l c on te mpt

be c aus e

“ the Cou rt

fo un d th a t th e Hu sb a nddidnot ha ve the fu nd s a va ila ble to p ur g e him se lf

of the c ivi l
c on te mpt .” Hu sb a ndthe n a sse rt s th a t be c a us e he did no t hav e the fu nd s a va ila ble to p ur g e him se lf of civil contempt, he c ould not be g uiltyof willfully ref using to pay the prior obligations for which he wa s g uil ty

of c ri min a l c on te mpt

. The trial c o u rt fo u n d Husband g uiltyof forty -five se parate eve nts of contempt stemming from ong oing r efusa ls to pay court o rd er ed chil d support, and spousal support and f rom the deliberate dissipation of marital assets. The trial court noted that evidenc e supporting this finding was “ bey ond the shadow of any rea sonable doubt and suf ficient to convinc e the whole world.”

Civil contempt is defined a s the “failure to obey a court order that w as i s sued for another party ’s bene fit. [C ivil contempt] is coerc ive or re medial in nature . The usual sa nction is to confine the contemne r until he or she c omplies with the court orde r.” Bla c k’s L aw D ic tio nar

y 313 (7 ed.

th 1999). Criminal contempt is “an a ct that obstructs justice or attacks the integ rity of the c ourt.” Id.-25-

I n this case, the trial court found that a sig nificant portion of the marital asse ts, namely , the automobile busine s s es , n o longe r belong ed to Husband but ha d in effe ct bee n acquir ed by Gra ndfathe r. Ther efor e, Husba nd no longe r had suf ficient a ssets to purg e the c ontempt, and Gra ndfathe r wa s not a par t y t o the litigation. The se asse ts were lost as a re sult of Husband’s dissipation. Unde r these circ umstances, criminal contempt may be appropriate wher e civil contempt is not.
Contempt procee dings lie w ithin the sound discretion of the trial c ourt. Wri t esm an v. Wr itesm an , M1999-00726-COA- R3-CV, 2000 WL 1367965, *7 (Tenn. Ct. App. 2000) A n app e llate c ou rt

wi ll n ot m od if

y a pu nis hme nt i mpo se d f

or c on te mpt un le ss t he c omp la ini ng pa rt y can show abuse of discretion. Id. Husband ha s shown no abuse of discretion and w e find no e rror in the trial court’ s decision.

On appea l, Wife has reque sted an aw ard of costs and attorne y ’s fe es for the appe al. We find such an a war d appropriate, and r emand the c ause to the t rial court for a determination of the amount of re a so na ble a tto rn e y ’s fe e s f

or thi s a pp e a l.

T h e d ec i s i o n o f t h e tri al co u rt i s af fi rm ed an d t h e c as e i s re m an d ed fo r f u rt h erp ro ce ed i n gs not inconsistent wi t h t his Opinion. Cos ts of the appe al ar e taxed to Husband, Russell Ray nor R o b i n s o n , a n d h i s s u r e t y, f o r w h i c h e x e c u t i o n m a y i s s u e i f n e c e s s ar y.

_______________________________________ HOLL Y M. KI RBY, JUDGE