### IN THE CO URT OF APPEALS OF TE NNE SS EE AT JACKSON Octo be r 15 , 20 10 Ses si on

SHE M MALMQUI ST v . DANIELL E MALMQUI ST

D i r e c t A p p e a l f

r o m t h e C i r c u i t C o u r t f o r S h e l b y C o u n t y N o . C T

- 0 0 1 2 9 8

- 0 5 J e r r y S t o k e s , J u d g e

N o . W 2 0 0 7

- 0 2 3 7 3

- C O A

- R 3

- C V

- F i l e d M a r c h 2 5 , 2 0 1 1

This is a divorce case involving a short-term marria g e. The husband is a pilot at Fe dEx and the wife is hig hly educa

ted. They have two c hildren tog ether . After less than five months of marria g e, the husband filed for divorce alleg ing irrec oncilable differ ence s and inappropria te marital conduct. The wife counter -cla imed, and unnece ssarily protrac ted litigation ensued. The parties inundated the trial
court with filings over a two-y ear period, many of which contained alar ming but ultimately unproven

acc usations. After one transfe r of the case and the withdrawa l of many attorney s, the parties
proce eded to trial during which they prese nted the live testimony of 30 witnesses and introduced 122 exhibi ts. The trial court awa rded a divorce to both parties on the g round of inappropria te marital conduct, desig nated the husband as primary residential pare nt, g rante d the wife supervised visitation with the children twice a wee k, awa rded the wife half of the 40 1 k b enefits the husband acc rued during the marria g e, and provided the wife transitional alimony for four months. The wife appea ls. We affir m.

T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C i r c u i t C o u r t A f f i r m e d a n d R e m a n d e d

D A V ID R

. F A R M E R , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h H O LLY M

. K IR B Y , J

. , a n d J

. S T E V E N S T A F F O R D , J

. , j o i n e d

.

D a n i e l l e M a l m q u i s t , P r o s e

.

S h e m M a l m q u i s t , P r o s e

.

O P I N I O N

I. Background and Proc edural History

The plaintiff/appellee
, Shem Malmquist (“H usband”)
, and the defe ndant/appellant, Danielle Malmquist (“W i fe”), beg an a romantic rela tionship in 2003 afte r Husband—then marrie d to hissecond w ife—plac ed a pe rsonal ad in a C alifornia newspape r. The parties dated and later resided

toge ther for sever al months afte r Wife become preg nant with their first child. After a brief split, the

co u p l e rec onciled and Wife beca me preg nant with their second child. Husband then moved to Memphis, T ennesse e with his job as a pilot at Fe dEx

. He sold his California residenc e and used a port i o n of the proce eds to pay off Wife’s student loans as well as her outstanding obliga tion on a BMW automobile. He also used a portion of the proce eds, which he d ep o s i t ed i n a joint bank
account opened in Memphis, to purcha se a home in Ger mantown, Tenne ssee. Despite Wife’s protestations, Husband place d the Ger mantown residenc e in his name only

. The parties eventua lly marrie d on October 27, 2004—the same day Husband rec eived a divorce from his second wife—a nd Wife moved into the Ger mantown re sidence . Wife lived at the Ge rmantown re sidence for a short period be fore g iving birth to their se cond child in Fe bruar y 2005.

I n ear ly Marc h 2005, the parties had a fig ht during which Wife admittedly punched Husband in the fac e. L ocal police responde d, interviewe d the parties, and arr ested Wife. Hus b and shortly there afte r filed a complaint for divorce alleg ing Wife was emotionally unstable, phy sically abusive, verba lly abusive, and suffe ring from sever e postpartum depre ssion. Acc ording to Husband, Wife’s phy sical assaults included an attack during which she incidentally struck her first child as well as a separ ate attack during which she struck Husband and threw a g lass vase at his head. Husband further alleg ed Wife had a history of filing false claims wit h t he police and the courts, including a false claim ag ainst Husband’s ex-wife for kidnapping the parties’ first child. Husband conclude d Wife’s actions constituted inappropria te marital cond u ct and posed a substantial risk of immediate and irrepa rable harm to H usband and the children. Husband acc ording ly soug ht a g rant of divorce and an appointment as pr imary residential pa

rent of the parties’ children.

Husband also reque sted that the trial court order Wife to underg o an immediate p s y c h o lo g ic a l evalua tion, enjoin Wi fe from seeing the children except throug h supervised visitation, and order W i fe to vacate the Ger

mantown residenc e following an expedited hear ing. I n response , th e t ri al
court set an expedited hear ing on the reque st for injunctive relief and psy cholog ical evalua tion. The court ordere d both parties to underg o a psy cholog ical evaluation and to deliver the psy cholog ist’s
repor t to the court prior to the hear ing. The court further order ed Wife to appea r and show cause why Husband’s pray er for relief should not be g rante d. Wife responde d with an answe r and counter

complai n t for divorce

. I n her answe r, Wife reje cted Husband’s char acte rization of their phy sical alterc ations. She alleg ed, to the contra ry , Husband’s phy sically and ver b a lly abusive behavior forc ed her on nume rous occ asions to defe nd herse lf. Wife contende d the Marc h 3 incident, for example, stemmed from Husband’s forc ing himself on her sexually despite her demands that he stop, and she only struck Husband in or der to protect he rself. Wife further contende d Husband’s acc ount of the Marc h alterc ation was incomplete. Acc ording to Wife, she i mmediately drove to First Tenness ee Ba n k afte r discovering her purse with all her cre dit car ds and asset information had disappeare d during the short time when Husband had exclusive use of the home. She repor t ed l y discovere d Husband “cle aning out” the parties’ joint bank acc ount, which she attempted to preve nt to no avail. There afte r, a confr ontation ensued over personal fil es W ife dis co v er ed in Husband’s vehicle, and Husband a lleg edly

punched Wife in the stomac h.

-2-Wife’s counter -complaint added that Husband, not Wife, was unfit to car e for the parties’

children pending psy cholog ical evalua tion. Wife alleg ed t h at , in addition to the Marc h incident, Husband had on sever al occa sions during the marria g e forc ed himself on her. He also place d her in fea r multipl e times when he punched, cut, and otherwise attempted to harm himself. Wife contende d these actions, in conjunction with Husband’s remova l of the y oung children from their mother, demonstrated a substantial risk of immediate and ir r e p ara ble injury to the children. Wife acc ording ly asked the court to order a psy cholog ical evalua tion, order Husband to rema in awa y from the marital residenc e during the divorce
, o rder Husband to repla ce $9,000 in marital funds remove d from the parties’ joint bank acc ount, g rant her a divorce on the g round of inappropria te mari t al co nduct or irrec oncilable differ ence s, d es i g nate her as primary residential pare nt, and equitably divide the parties’ marital proper

ty

. Wife also reque sted an aw ard of alimony
, child support, attorney ’s fee s, and expenses.

On Marc h 10, 2005, the par ties entere d a conse nt or der on custody of the children pending the expedited hear ing. The parties ag ree d Husband would have temporar y phy sical custody of their first child and Wife would have temporar y phy sical custody of their second child. The parties further
agre ed W ife would vacate t he Germantown residence and Husband would pay for W ife to stay i n a hotel room with at l east two furnish ed bedrooms. The consent order permitted W ife to take the baby furniture and nece ssities with her and require d Husband to reimburse her for cer tain expenses. The consent order also established a temporar y visitation sche dule for eac h pare nt and require d all discussions betwee n Husband and Wife reg arding the children to occur throug h counsel. Finally
, the orde r provided D r. John Ciocca would conduct the c ourt-orde red psy cholog ical eva luations of both parties and repor

t his finding s. On Marc h 22, 2005, the parties ag ree d to continue the expedited hear ing a nd rema in bound by

the Marc h 10 consent orde r as slig htly amende d.

The Marc h 10 consent order g overne d the custody and visitation issues until late November 2005. I n the interim, the cour t a ppointed a g uardia

n ad litem f

or the minor childre n. Wife moved for and rec eived support pendente lite, which rema ined a constant source of dispute throug hout the

ca s e. T h e parties filed and fierc ely litigated various motions. Minor disputes turned int o irrec oncilable conflicts. Attorney s came and went. Competing petitions for contempt wer e filed. 1 Motions to compel were filed. All the while the pa rties incurr ed substantial attorne y ’s fe es.

The case appea

rs to have taken a turn for the worse in November 2005. Acc ording to Wife, 2 Husband appea

red at her apar

tment on November 30, 2005, while she was exercising visitation with

Doro thy Poun der s of

th e Po unde rs Col eman la w fi rm repr ese nte d Hus ban d f or the ent ir et y of the 1

tr ia l c our t p roc eed ings. Wi fe , on the ot her han d, e m plo yed at le ast ni ne d if

fe re nt at tor neys.

T he GAL fi le d a pet it ion to pl ace th e c hil dre n in f ost er ca re whi ch s ugg est s t he i nte nse ac ri m ony 2

m ay have st ar te d wel l bef ore Novem

ber 30. She st at ed in her pe t i t i o n t h e p a r ti es m ade numerous , if not dai ly, al l e ga t i o n s of abu se and neglec t thr oughout thi s cas e. Her pet it ion ass er ts “[ t] he chi ldr en wer e

con st ant ly sub

j ect ed to doc tor or emergency roo m visit s to doc um ent al le gatio ns and the pol ic e wer e cal le d so f re que ntl y that th ey k

now a nd d re ad t he n ames of th e pa rt ie s.”

-3-one of the children. Husband repor tedly threw an unidentified substance on her and the child and 3 struck her with something wra pped in his hand. Wife there afte r rushed t h e ch i l d to the hospital beca use she be lieved he ha d inge sted a for eig n substance. 4

Husband offe red an entirely differ ent version of events. Acc ording to Husband, he lear ned from the GAL shortly afte r having dinner with friends on the evening in question that Wife and one of their children had been taken to the hospital. He contac ted the Ger mantown Police Depa

rtment (“G PD”) and a detec tive asked to meet with him. The detec tive explained Wife had alleg ed Husband phy sically assaulted her and exposed the child to a petroleum-ba sed product. Husband met with GPD and later filed a petition to restric t Wife’s visitat i o n

. Hu s b an d asser ted in his petition that Wife’s claims wer e fa lse and lodg ed only to preve nt him from pare nting his childre n.

The November 30 incident initiated investiga tions by bo t h GPD and the Depa rtment of Children’s Service s (“D CS”). Neither GPD nor DCS ultimately took action ag ainst Husband. The incident appea

rs, howeve r, to have spurre d Husband, DCS, the GAL
, and the materna l g randpa rents to file depende ncy and neg lect petitions with the Shelby County J uvenile Court. On Dec ember 27, 5 2005, a juvenile court ref ere e found the children in immediate need of protec tion and awa rded temporar y custody to Husband. The pa

rties subsequently

enter ed a c onsent order briefly allowing Wife to exercise supervised visitation with the children. Unfortuna tely
, this order res u l t ed in a second set of serious alleg ations reg arding the exposure of t h e ch i l d ren to g asoline. Husband responde d to these alleg ations with a petition for injunctive relief to prohibit Wife from exercising visitation with the children. Husband’s petition explained Wife filed a complaint with DCS alleg ing

one of the children’ s diaper s smelled of g asoline, which Husband alleg ed could only have occur red

as a r esult of Wife’s intentional conduc t.

On Fe bruar

y 24, 2006, the juvenile cour t sustaine d Husband’s and the GA L ’s petitions for depende ncy and neg lect, awa rded custody of the children to Husband, and g rante d Wife supervised

T he st at ement of the eviden ce sugg est s Wi fe te st if ie d tha t thi s event invol ved the par ti es’ fi rs t chi ld. 3
T he GAL’s pet it ion for dep end enc y and neglec t al le ges the inc ide nt con cer ned the par ti es’ sec ond chi ld, as doe s Fa the r’ s pe ti ti on. T he t ri al cou rt ’s st at ement of th e ev ide nce m ay con ta in a scri vener’ s err or or Wi fe

m ay h ave te st if

ie d re gardi ng t hei r fi rs t chi ld. We ar e u n a b l e to det er m ine whic h is the cas e on the re cor d bef ore us. N evert hel ess , the si gnifi can ce of the event doe s not dep end on whic h chi ld was al le gedly sub j ect ed t o ha rm.

T he GAL sugg est ed in a pet it ion fi le d wit h the tr ia l cou rt tha t tr eat m ent of the par ti es’ sec ond chi ld 4

re veale d he swa ll owed not hin g harmful.

T he m at er nal grandp ar ent s al so fi le d a m oti on to int er vene in the divor ce cas e, whic h the tr ia l cou rt 5 grant ed. T hey par ti ci pat ed in the cas e for a per iod but la te r volunt ar il y non-suit ed the ir int er vening pet it ion for cus tod y as wel l a s t hei r a ppe al fr om th e j uvenil e c our t’ s f

ind ing of dep end enc y and ne glect

.
-4-visitation at the Ex chang e Club Family Center (“Exchang e Club”) for one hour per wee k. Wife 6
appea led the juvenile court’s decision and the circ uit court assumed jurisdiction over the de novo hear ing. The circ uit court there afte r consolidated the depende ncy and neg lect proce eding s with the divorce case

. 7

The case continued to spiral downwar d afte r Wife lost custody of the children. On May 22, 2006, Husband filed a petition f or injunctive relief

asking the cour

t to enjoin W ife fr om filing a ny pleading in any other court, including the Superior Court of California for San Mateo County
, reque sting adjudication of issu es p re s entl y befor e the Shelby County Circuit Court. Husband explain ed W i fe ca used to be filed a temporar y restra ining order and child custody order in the California c ourt which a

war ded phy sical and le g al custody of the pa rties’ c hildren to Wife. Wife attempted to have Shelby County law enfor ceme nt execute this order in May 2006 and deliver custody of the c hildren to Wife in direct violation of the Te nnessee custody order

.

On May 24, 2006, the Honora ble J ames Russell transfe rre d the case due to a conflict. The Ho norable J err

y Stokes acquir ed responsibili ty for the case under a random selection proce s s an d presided over the divorce throug h completion. On J une 1, 2006, J udg e Stokes e ntere d an order on Husband’s prior reque st f or injunctive relief

. The court enjoined Wife from filing any pleading or proce eding in any other court, including the Superior Court of California for San Mateo County
, reg arding adjudication of any issue within the jurisdiction of the circ uit court including reque sts for custody of the children and temporar y support. The court further require d Wife to relinquish to Husband any trave l documents she may have had in her possession for either child including but not limit ed to p as s p o rt s

. The court also awa rded Husband attorney ’s fee s and litigation expenses for having to file and proce ed with his petition. This issue, howeve r, would rema in a source of dispute throug hout the proce eding s.

On J une 2, 2006, Wife petitioned for a n order of protec tion ag ainst Husband. Her petition alleg ed:

On 1/21/2005 while I was try ing to protec t [our first child] from one of [Husband’s]
rag es, [ Husband] pushed [ us] down t hree flig hts of stairs while I was e ight months
preg nant. I was transporte d to the Emerg ency Room and suffe red a g rade four sprained ankle and an injured hip. On 3/03/2005 in front of both children [Husband] assaulted me a

nd rape d me and knocked [our second c hild] , then a ne wborn, down

on the g round. On 11/30/2005 [Husband] attacke d me with a knife and tried to make [our second child] drink Ker osene. Both [ my second chi l d ] an d I wer e transferr ed
to the Emerg ency Room a nd I suffe red concussion, a hip injury and wounds. Since 11/30/2005 I have been stalked an d h ar assed by private investiga tors hired by

T he ci rc uit cou rt la te r m odi fi e d t h e visit at ion sch edu le to pro vide Wi fe si x hour s of sup er vised 6 visit at ion per week at th e Ex cha nge Club

.

T he r eco rd on a ppe al doe s no t i ncl ude th e r eco rd of the j uvenil e c our t p roc eed ings. 7

-5-[Husband]

. I n 3/2006 & 4/2006 [Husba n d ] s en t my family a letter stating that if I

attempted to visit the children “an unexplained acc ident will occur to the children.” On 4/3/2006 [ Hu s b an d] drug g ed me and rape d me which is curr ently under investiga tion. On 5/08/2006 I had to call the police beca use I was followed from my pare nt’s house in Ca lifornia to my Gra ndmother’s house. On 5/24/2006 my fathe r, Claudio Nicolosi[,] rec ived [si c] a note on his apar tment door in Cordova, Tenne ssee that stated “B itch watch out y our [sic] dead.” 8

Wife rec eived an ex par

te order of protec tion a

nd J udg e Stokes or dere d Husband to appea r and show cause why an order of protec tion should not i s s u e. Wife there afte r serve d her ex parte order of protec tion on Husband’s employ er. This led Husband to file a petition for civil and criminal contempt, as well as further i njunctive relief
, alleg ing Wife violated the automatic injunction imposed pursuant to Tenne ssee Code Annotated section 36-4-106( d)(3) by hara ssing sever al Fe dEx employ ees and serving the ex parte order of protec tion on the airline’s Pilot s Association. The trial 9 court g rante d Husband’s r equest for injunctive relief

.

On J une 7, 2006, Wife alleg edly appea red befor e the Superior Court of San Mate o County
to litigate the temporar

y restra ining order and child custody order p re v i ously filed. I t appea red to Husband that Wife would attempt once ag ain to ha ve Shelby County law enfor ceme nt execute the California order. Husband therefor e filed an emerg ency petition to preve nt Wife fr o m contac ting the children in any manner , removing the children from Husband, or removing the children from the jurisdiction. He also filed a petit i on for criminal contempt, citing Wife’s willful disreg ard of the

o rd er prohibiting Wife from proce eding in the California court on any matter within the circ u i t court’s jurisdiction. I n addition, Husband filed an emer g ency petition to enjoin Wife from coming about Husband’s residenc e, coming ab out any of the children’ s schedule d appointments, and communicating wi t h Hu s b and. The court g rante d Husband’s reque st for injunctive relief and prohibited Wife, inter alia , from communica ting with Husba nd.

Wife’s inability to contac t Husband did not preve nt subsequent disputes from arising

. On J uly 31, 2006, Wife filed a pro se petition for contempt alleg ing Husband willfully disreg arde d his obliga tion to pay Wife’s cre dit car d expenses as set forth in the Marc h 10 consent order

. She further submitt ed Husband violated a mandatory injunction prohibiting him from canc ell i n g Wife’s car

T he tr ia l exh ibi ts pro vide fur the r ins ight on the al le ged ra pe. Wi fe al le ged Husb and ent er ed h e r 8 hot el roo m thr ough a wind ow, ti ed her up, and ra ped h e r w h i l e hol din g his han d over her m out h. She bel ie ved Husb and had an acc om pli ce, st at ing an uni den ti fi ed wom an m ay have sl ipp ed somethi ng in Wi fe ’s d r i n k w h e n s he pic ked up foo d at a loc al re st aur ant

. T he Rape Cri ses Cent er adminis te re d a ra pe kit, a n inves ti gatio n ens ued
, pol ic e int er viewed Husb and and too k a DNA sample, but th e T enn ess ee Bure au of I nvest igati on (“T BI ”) fou nd no ev ide nce of Husb and ’s semen. As a re sul t, no cri m ina l char ges wer e fil ed.

T enn ess ee Code Annot at ed sec ti on 3 6

- 4- 106( d)( 3) aut om at ic al ly imposes “[ a] n inj unc ti on 9

re st ra ini ng bot h par ti es fr om har ass ing, thr eat eni ng, ass aul ti ng or abu si ng the oth er a n d f rom m aking dis par aging r emarks abo ut the oth er to o r i n the pre sen ce of any chi ldr en of the par ti es or to ei the r par ty' s employer.” T enn . Code Ann. § 36- 4- 106( d)( 3) (20 10)

.
-6-insurance

. Husband subsequently moved to sanction Wife under Rule 11.02 of the Tenne ssee Rules

of Civil Procedur e. He also filed another petition for criminal contempt, this one conce rning an alleg ed violation of the order prohibiting Wife from hara ssing Fe dEx employ ees. Additionally
, the GAL filed an emer g ency petition to prohibit Wife from posting photogr aphs and information about the minor children on a blog entitled “Custody Ba ttle in Memphis” airing her side of the continuing divo rc e dispute, which the trial court later g rante d. I n light of the continued alleg ations made 1 0
ag ainst both parties, the mate rnal g randpa rents also filed a

petition for custody

of the c hildren.

Ex tensive litigation continued reg arding these and other matters for sever al months. I n the meantime, sever al non-par ties beca me embroiled in the dispute. An employ ee of Ba ptist Memorial Hospital, for example, moved for a protec tive cust o d y o rd er to relieve her of any duty to testify
reg arding persona l information and to require her to testify only in the judge ’s chambe rs without the parties prese nt. She asser

ted in her motion that Husband subpoenae d her to testify reg arding her role
at the hospital. She there afte r rec eived multipl e threa t en i n g l et t ers from Wife war ning her not to testify in the divorce case

. One of the letters repor tedly stated: “This is y our last war ning, do not 1 1 testify on September 11, 2006 or I be [si c] inventive on how I pour g asoline on y ou and light y ou on fire. Stay out of my business. No m o re war nings.” Wife, on the other hand, moved for an injunction prohibiting Husband’s new g irlfriend and her child from having any contac t with the parties’ minor children. And she later filed a moti o n to “De termine Why Courts Be lieve the Children’s I ntere st is Be st Served by Not Having Contact Wit h Asian Mother” in which she alleg ed a Memphis police officer told h er if she di d not “straig hten out her ey es” she would never g et her children ba ck. Additionally
, Wife filed a motion ag ainst Husband’s a ttorney alleg ing the attorney conspired with Husband to place Wife and her children under duress and forc e W ife to sign the Marc h 10 consent orde r addr essing custody

.

The divorce beca

me so contentious that one of the non-par ties, The Ex chang e Club, declined
to participa

te further in the case citing t h e co nflict betwee n Husband and Wife. The Ex chang e 1 2

“W if e’ s Cus tod y Batt le in Me m phi s” blo g stat es it s pu rpo se as fol lows : 1 0

T HANK YOU FOR V I SI T I NG MY SI T E. I HAVE CREAT ED T HI S SIT E IN AN EFFORT T O ADDRESS T HE RACI SM AND I NT ERNAL CORRUPT I ON T HAT ST I LL EX I ST (s ic ) I

N MEM PHI S, T ENNESSEE. I T I S 200 6 YET MEM P HI S HAS BEEN I N A T I ME WARP. I AM AN ASI AN AMERIC AN T HAT HAS BEEN ST RI PPRED (s ic ) OF HER CHI LDREN BECAUSE OF T HE COLOR OF MY SK I N AND T HE SHAPE OF MY EYES. I HAVE B E E N S T ABBED, RAPED, AND DOUSED I N GASOLI

NE BY MY HUSBA N D
, SH EM MALM QUI ST
, (I S CAUCASI AN) YET T HE POLI CE ARE UNWI LLI

NG T O CONDUCT AN I NV EST I GAT I ON.

One of the tr ia l exh ibi ts sugg est s a han dwri ti ng exp er t det er m ine d Wi fe aut hor ed the thr eat eni ng 1 1 le tt er

.

T his m ay h ave st emm ed in par t f rom Wi fe ’s al le gatio n tha t an uni den ti fi ed m an app roa che d her 1 2 (c ont inu ed.. .)

-7-Club ex p l ai n ed t o Wife by letter it had tried for sever al months to work with Wife reg arding

visitation, but it h ad b ec o m e appar ent that the Ex chang e Club could no longe r acc ommodate her needs. The letter added that “it is evident that this case is placing excessive demand on our resour ces to eff ectively provide visitation resour ces to y ou.” The Ex chang e Club further explained in a letter addre ssed to the GAL :

The Ex chang e Club Family Center provides supervised visitation service s in order to cre ate an atmosphere wher e the emotional and phy sical well-be ing of children is fostere d. We strive to assist pare nts in maintaining healthy rela tionships with their children in a non-conf lict, neutral e nvironment. As such, we rese rve the rig ht to deter

mine whe t h er or not we can adequately provide supervised visitation service s when fa

milies are c ourt order ed.

. . . .

As stated, our purpose in providing supervised visitation is to cre ate an environment for pare nts to conduct themselves in a manner that clea rly demonstrate [si c] that they are putting their own i ntere sts aside (which i s often very h ar d to do) and focusing on establishing and maintaining a healthy
, nurturing rela tionship with their children. The Malmquist case has consi s t en t l y place d undue demand on our

resour ces to eff

ectively continue providing s er v i ce s , leading us to fee l it nece ssary to terminate this case

.

After the Ex chang e Club’s withdrawa l, the trial court order ed visitation at West Tenne ssee Family Soluti ons (“WTFS”)

. WTFS, howeve r, also ref used to further provide Wife service s afte r a period due to “una

nticipated conta cts” to the a g ency from outside sourc es.

The pa rties’ ba rra g e of motions and petitions continued as the case trudg ed forwa rd, many

nece ssitated by Wife’s previous pro se motion filings and her actions in filing additional lawsuits. Dorothy Pounders, for example, moved to withdraw as Husband’s counsel beca use Wife filed a civil action in Shelby County Gene ral Sessions Court alleg ing “extortion, fra ud, misrepre sentation, [and] duress” ag ains t the law firm of Pounders Coleman and one of its associate s. Husband’s attorney explained she fea

red the firm’s interests in defe nding the g ener al sessions lawsuit might materia lly limit its ability to continue repr esenta tion of Husband. The trial court eventua lly denied the motion
t o withdraw. Wife responde d with separ ate motions to disqualify the GAL and to disqual i fy attorney s from the Pounders Coleman la w firm.

Husband tried somewh at t o s tem the tide of litigation, petitioning for injunctive relief to p ro h ibit Wife from filing any court actions ag ainst judge s, the GAL
, employ ees, cour t ro o m

(... con ti nue d) 1 2 dur ing her sec ond visit at the Exch ange Club and thr ew a li qui d sub st anc e on her

. T he pol ic e a n d t h e Exch ange Cl ub’ s s ecu ri ty te am investi gated the in ci den t b ut no c har ges wer e e ver fi le d.

-8-personne l, Husband, Husband’s counsel, Husband’s employ er, any witnesses, any family members,

or any other persons associate d with the case pending further order s of the court. Husband alleg ed 1 3 Wife had pursued a pattern of abuse of proce ss a nd the filing of frivolous complaints to intimi date witnesses, attorne y s , an d co urt personne l. I n addition to the complaint filed ag ainst Husband’s attorney , he asser

ted Wife had filed adm i n i s t ra t i ve complaints ag ainst police office rs and court personne l involved in the divorce c ase, a n action ag ainst Fe dEx , and an a ction ag ainst his ex -wife and fourtee n-y ear -old child in California. The excessive filing of motions and petitions continued 1 4 unabate d. The rele ase of the GAL ’s repor t beca me a highly disputed issue, en t an gl i n g sever al additional non-par

ties in the conflict betwee n Husband and Wife. I ssues of contempt rema ined a

source of contest. And Wife acc used the GAL of misconduct, illega l activity
, and violations of the ethical r ules g overning

lawy ers.

The trial court, much to its cre dit, manag ed to conduct a trial in April 2 0 07. The parties
p rese nted the live testimony of 30 witnesses, the deposition testimony of 1 witness, an d 1 2 2 t ri al exhibi ts ove r sever al day s. The live witnesses included Wife; Husband; Husband’s second wife, 1 5 Rebecca M al m q u i st; Dr. Fr ed Steinberg
, PH.D; Dr. J ohn Ciocca, PH.D; Dr. Neil Ara nov, PH.D; Wife’s sisters, L isa and Eliz abeth Nicolosi; Wife’s fathe r, Claudio Nicolosi; the g uardia n ad litem, Gina Hig g ins; and a for ensic investig ator with the TB I , Quadr i Devnam.

As one might expect, Husband and Wife offe red starkly contra sting testimony with respe ct to the alterc ations that aros e d u ri n g and afte r the marria g e. The GAL ’s testimony sug g ested, howeve r, Wife was the primary cause of the problems conce rning the children. The GAL testified she investiga ted eac h and ever y alleg ation the parti es m ad e and found no evidenc e to support the alleg ation that Hus b and abused the children. She further testified the unusual incidents which

occur red throug hout the proce eding s cea sed when Husband obtained custody of t h e ch i l d ren.

T he par ti es had pre viousl y ent er ed int o a con sen t ord er enj oin ing eac h of the m fr om fi li ng sui ts or 1 3 cha rges, wh et her ci vil or cr iminal , again st th e ot her wit hout re cei ving writ te n pe rmissi on f rom the cou rt

.

One of the tr ia l exh ibi ts , for exa m ple
, is a complai nt for viola ti on of ci vil ri ghts, viola ti on of fe der al 1 4

con sumer pro te ct ion la w, m al icio us ha ra ss m en t, out ra geous con duc t, m al ic iou s pro sec uti on, def amatio n, and ci vil consp ir acy. Wi fe fi le d this complai nt agains t the Cit y of Me m phi s, Memphis Pol ic e Offi cer Mi cha el Akin, ind ividu al ly and in his off ic ia l cap aci ty; Me m

phi s Pol ic e Off

ic er Me la nie Howe, ind ividu al ly and in her off ic ia l cap aci ty; Bar tl et t Pol ic e Capt ai n David Cupp, ind ividu al ly; Cit y of Ger m ant own; Ger m ant own Pol ic e Capt ai n Lee Covey
, ind ividu al ly and i n h i s o ff ic ia l cap aci ty; Ger m ant own Pol ic e Det ect ive W.E

. Ste m m le r, ind ividu al ly and in his off ic ia l cap a c i t y; G e rmantown Pol ic e Off ic er Cann on, ind ividu al ly and in his off ic i a l c a p aci ty; Lis a T ucker Akin, ind ividu al ly and unde r app ar ent col or of aut hor it y; Shem Ma lmquis t; and J ohn Doe 1- 10. Wi fe al so fi le d an adminis tr at ive complai nt agains t Me m phi s Pol ic e Off

ic er Mi cha el Akin al l e gi n g h e use d dep ar tment re sou rc es to sup ply his wif e, pri vate inves ti gator Lis a Akin, inf ormati on abo ut Wi fe

. Off ic er Akin re spo nde d tha t he acc ess ed the Me m phi s Pol ic e Depa rt m ent kiosk onl y due to con st ant thr eat s and har ass m ent by Wi fe

. He ult imatel y re cei ved a two-day s u s p ens ion for viola ti on o f M PD re gulat ion s.

Wi fe as ser te d at or al ar gum ent s t he t ri al la st ed f our te en d ays. 1 5

-9-Acc ording to the GAL
, the children appea red to be safe and fairly well-a djusted afte r residing with Husband for a period. She acc ording ly rec ommend ed t h e t rial court name Husband the primary residential pa

rent a nd continue the supe rvision of Wife’s par enting time.

I n addition, one of the seve ra l m ental health profe ssionals offe red troubling testimony

conce rning Wife. Dr. Ste i nberg testified Wife y ielded a clinically signific ant profile afte r

a d mi n is tr a ti o n o f th e M in

n e sota Multiphasic Personality I nventory -2 (“MMPI -2”) and th e Ro r s c h a c h I nkblot Tec hnique. He explained that testing of Wife reve aled an eleva tion on the para noia scale and anti-social persona lity traits. He also descr ibed Wife’s rea lity testing as poor. Acc ording to Dr. Steinberg
, Wife evidenc ed bizarre- thinking, perc eived herse lf as a victim of conspirator ial plots, and

ex h i bited fee lings of perse cution. Dr. Steinberg testified this ty pe of perse cution mentality is a delusional disorder. He further testified that Wife rec eived a Global Assessment o f Fu n cti on (“G AF” ) score of 50, which ref lected a low level of functioning

. Dr. Steinberg ’s repor t detailed his finding s and adde d:

I t is signific ant that [W ife] y ielded an abnorma l MMPI -2 profile, considering the circ umstances of the prese nt evalua tion

. M o s t individuals are defe nsive and attempt to prese nt themselves as normal, particula rly when in the midst of a custody conflict. [W ife] was unable to do this within this prese nt evalua tion. She expressed serious psy chopatholog y with indications within the data consistent with delusional thinking. The Rorschac h indicated poor rea lity testing. These fea tures are consistent with an individual who is unawar e that her thoughts a

re a berr ant.

The Court will ultimately assess whether [W ife’s] alleg ations have merit. I t is very possible that she is issuing alleg ations which are e it h er dece itful or delusional. These two possibili ties do not have to be mutually exclusive. The psy cholog ical test data indicate t h e p o s sible prese nce of a psy chiatric disturbance that most fits the criter ia of a Delusional Disorder and a persona lity disorder wi t h an tisocial and border line fea tures.

The other mental hea l t h profe ssionals who examined the parties offe red vary ing views. Wife’s psy cholog ist disput ed the f indings of D r. Steinberg . Dr. Ar anov desc ribed Dr

. Steinberg ’s hand-sc oring of W ife’s MMP I -2 as fra ug ht with err or, adding that his testing of Wife reve aled no signific ant eleva tions. Having trea ted Wife approximately 60 times, Dr. Ara nov disag ree d with the descr iption of W ife as a “c razed” person. Dr . Ciocca likew ise testified his testing of Wife did not

reve al significant eleva tions but cautioned he did not complete his repor t beca use the parties’
at t o rn ey s reque sted he go no further in his evalua tion. Dr. Ci occa testified hi s finding s may have chang ed had he completed the r eport.

A fourth psy cholog ist, Dr. J ohn Hutson, PH.D., evalua ted t he parties but d i d n o t t est ify at trial. Dr. Hutson re ported in a le tter to the GAL :

-10-[Husband] was administered an MMPI -2 and a Millon Cli n i ca l Multiax ial

I nventory -I I I on Marc h 10, 2005 by Dr. J ohn Ciocca. The testing had marg inal validity beca

use he attempted to place himself in an overly p o s i t i v e light by minimi zing his faults and deny i n g h i s problems. He is not very introspective or insightful about his own behavior

. He is not particula rly open to psy cholog ical selfevalua tion and is somewhat ri g id and inflexi ble in his approa ch to problems. [Husband] appea

rs to have g ood social skills and has littl e difficulty interac ting with others. He does not appea r to be overly anxious or prone to develop unrea listi c fea rs. Under conditions of stress, howeve r, he has a tendenc y to develop phy sical problems and has difficulty o p enly expressing ang er. He is likely to be seen as somewhat conventional and not as s er t i v e but self-c enter ed and attention seeking

. He has a strong need for aff

ection from others. His sociability may be somewhat superf icial and mask an overly ing irritability and arr og ance

. Diag nostically
, he shows evidenc e of histrionic persona lity

traits and some na

rcissistic char acte ristics.

. . . .
[W ife] was administered an MMPI -2 on Marc h 10 and a Millon on Marc h 11 by Dr. Ciocca. There was a considera ble amount of simil arity in th e results in her testing with those of her husband. She also responde d in a rathe r defe nsive manner , attempting to projec t a favor able self-imag e. She has a very high need to be seen in

a positive lig ht, is ra

ther inflexi ble and unrea listi c, and has an exagg era ted sense of
persona l virtue. L ike her husband, she is also rathe r naive and uninsightful about her
psy cholog ical functioning

. She seems to hav e a t en d ency to blame others, to be irritable, and to be arg umentative. This tends to cause problems in rela tionships and her high d egr ee of interper sonal hy perse nsitivi ty can lead to periods of instabilit y when stressed. She also is outgoing and sociab l e wi t h a strong need to be around
ot h er s. The results, howeve r, do show that she is more prone to violent behavior when ang ry

. On the Millon, she shows evidenc e of obsessive compulsive disorder. Howeve r, her next three highe st score s, all of which are signific ant, near ly mirror her husband’s a

nd include desira

bility , histrionic and nar cissistic traits.

. . . .

. . . . Given their level of educati o n, intelligenc e, and ag e, one has to wonder how two children c ame to be bor n in such a brie f per iod of time into a rela tionship wit h virtually n o s t ab i lity

. Both pare nts are seen as rathe r emotionally needy
, selfcente red, and socially shallow. The one streng th that [Husband] bring s is that he has built a succe ssful car eer over a signific ant period of time which has require d him to be emotionally stable and fre e of any substance abuse problems. He obviously works in a clo s ely supervised environment wher e any problems would be difficult to

conce al. [W ife], on the other hand, seems to have a very war m and supportive family ; howeve r, by their own admission, they know littl e about her, espec ially from the time

-11-she left the U niversity of California B erke ley

until the present day

. The trial court ultimately resolved the theories set forth in the conflicting expert proof in favor of Dr. Steinberg

.

On J uly 11, 2007, the t rial court enter ed a fi n al decree of di vorce which contained s ever al finding s releva

nt to this appea l. First, the c ourt found each party eng ag ed in conduc t warr anting 1 6 the g rant of a divorce ag ainst the other and decla red the parties divorce d pursuant to Tenne ssee Code Annotated section 36-4-129( b). Second, the court named Husband the primary residential pare nt. The court continued supervision of Wife’s pare nting time, awa rding her pare nting time twice a wee k for u p t o fo u r h o u rs per session and additional time on holiday s. Third, the court deter mined the 401k benef

its Husband acc rued during the marria g e repr esente d the only marital proper ty subject to equitable distribution, which the court divided evenly betwee n the parties. Four th, the court awa

rded Wife transitional alimony for four months i n t h e am o u n t of $2,500, reje cting her reque st for attorney ’s fee s. Fifth, the court order ed eac h party to pay a portion of the GAL ’s fee s, deeme d those fees ch i l d support, and place d a lien on Wife’s portion of Husband’s 401k benef its to ensure pay ment. Six th, the court dismiss ed Husband’s petition for contempt, finding Wife had not willfully failed to pay child support. Finally
, the court perma nently enjoined eac h party from coming around the other e x cept f

or child visitation purposes or cour t proce eding s. Wi fe timely appea led. 1 7

The trial court’s resolution of the substantive issues betwee n the parties did not slow the pace of litigation. Wife’s initial post-trial filings inclu d ed a R u l e 60 motion for rec usal, relief from judgme nt, and new trial; an emer g ency petition for injunctive relief to prohibit Husband ’s fo u rt h wife from spending time uns upervised with the children pending a psy cholog ical evalua tion; a second mot i o n for rec usal; a motion to disqualify the GAL ; and a motion for sanctions ag ainst P o u n d ers Coleman. Pertinent to this appea l, Wife filed a motion to compel the court repor ter t o produce a copy of dup l i ca t e tapes of the trial proce eding s, which the parties later dismiss ed by
consent. Wife explained in her paper s befor e the trial court and this Court that a dispute aros e betwee n her and the court repor ter over the cost of the transcr ipt. Wife appar ently filed suit ag ainst the court repor

ter for brea ch of contra ct in the Shelby County Gene ral Sessions Court. The transcr ipt

never theless rema ined unavailable to this Court for the purposes of appea l. Husband filed motions of his own, including a motion to dismiss the appea l for failure to timely file the trial transcr ipt. This Court denied Husband’s motion to dismiss and rema nded for consideration of Wife’s Rule 60 motion.

T he cou rt al so ent er ed an ord er on the pet it ion s for dep end enc y and neglec t fi ndi ng Husb and and

1 6 the GAL did not cl ear ly and con vinci ngly pro ve the al le gatio ns of the ir pet it ion s. Nei the r par ty cha ll enges the cou rt ’s ru li ng on de pen den cy and n eglec t.

T he tr ia l cour t’ s fin al dec re e or der ed t he par ti es to pre par e a per m ane nt par ent ing plan and chi ld 1 7

sup por t workshe et bas ed upon it s fi ndi ngs. T he par ti es fi le d and the cou rt app roved the par ent ing pla n and chi ld sup por t wo rkshee t o n Dec ember 14 , 200 7.

-12-On rema nd, the trial court enter ed an order deny ing Wife’s motion for Rule 60 relief

. Wife subsequently fi l ed t h e trial court’s order
, a statement of the evidenc e, and a notice of the curr ent unavailability of the trial transcr ipt with this Court. We responde d with an order requiring Wife to file her statement of the evidenc e with the trial court pursuant to Rule 24 of the Tenne ssee Rules of Appellate Procedur e. Husband there afte r rene wed his motion to dismiss the appea l for failure to file

a transcr ipt, which led this Court to rema nd the case once ag ain to the trial court for approva l of the

rec ord and a

uthentication of the e x hibits. This Court in its discretion per mitted the la te filing of

a transcr ip t t h ro u gh Marc h 9, 2009, but require d Wife to submit a statement of the evidenc e if the
transcr ipt remained una

vailable.

Wife filed a portion of the purported trial transcr ipt on rema nd. Although Wife did not procur e a transcr ipt from the court repor ter, she did rec eive a copy of the tape rec ording s. I t appea rs Wife copied, re viewed, a

nd transcr ibed these ta

pes. She later

filed her transcr ipt and statement of the evidenc e with the trial court. Husband responde d with a detailed objection to Wife’s filing and her state ment of the e vidence . He asserted the transcr ipt contained numerous errors including the attribution of testimony to incorre ct or unnamed witnesses

. He added that Wife enter ed only a portion of the transcr ipt that was available from the audio rec ording s, excluding much of the testimony favor able to Husband. Additionally
, he stated Wife repe ated portions of the transcr ipt and
p l ac ed t h em out of context. The trial court ag ree d with Husband and filed an order titled “Non Certifica tion of the Record” ref using to cer

tify the purported transcr ipt as a fair and acc urate acc ount of t he procee dings before the court. The court instead pre pare d and filed its own stateme nt of the evidenc e.

Nea rly a y ear -and- a-ha lf afte r Wife filed a notice of appea l, the briefing stag e of this appea l beg an. The onslaug ht of filings continued. The parties filed motions reg arding the integ rity of the

rec ord, a motion to rema nd, and a m o t i on for consideration of post-trial fac ts. The parties filed

numerous motions and response s rela ted to extension of the briefing schedule

. Wife moved to strike Husband’s brief. T h e p ar ties filed multipl e motions to continue oral arg uments. Husband filed

m u l t i p l e noti ces alleg ing he had not rec eived W ife’s appellate filings. Husband filed a mo t i o n t o require the appellate court cler k to forwa

rd copies of Wife’s pleading s to Husband. Wife moved to

vacate an order of the trial c ourt. Wife moved t o rec onsider correc ting the rec ord. Husband filed a notice of bankruptc y

. Wife moved t o stay the appe al. Many of these f ilings ec lipsed 30 pag es 1 8 including attachme nts. Most filings g ener ated a response

. Many response s g ave rise to a reply

. And this Court diligently proce eded to r espond to e ach filing by order

. The parties, both pro se , finally
appea red be fore this Court for oral ar g uments in October 2010. 1 9

Ha v i n g deter

mined there is no rema ining impediment to our revie w, we now turn to th e

Husb and la te r f

il ed n oti ce wit h t his Cour t d emonstr at ing he dis m is sed hi s ba nkrupt cy pet it ion

. 1 8

Wi fe ra is ed a number of ar gum ent s dur ing ora l ar gum ent s tha t she did not ra is e in her bri ef
, re lying 1 9 on fac ts whic h find no s uppo rt in th e r eco rd. W e e xpl ai ned at th at ti m e ou r review is li m it ed to the re cor d bef ore us, whi ch we re it er at e he re

.
-13-issues prese nted in the par ties’ brief s. 2 0

II. Issu es P rese nted

Wife raises the f

ollowing issues, a s we pe rce ive them, for r eview:

(1) Whether this Court must dismiss this appeal for lack of a fina l judgment;

(2) Whether the appellat e rec ord is so corr upt due to no fault of Wife that we must remand for

corr ection;

(3) Whether the trial court abused its discretion during the allocation of pare ntal responsibility ;

(4) Whether the trial court ab u s ed its discretion during the classifica tion and division of marital proper ty ;

(5) Whether the trial court abused its discretion when it awa rded short-term, transitional alimony

to Wi fe;

(6) Whether the trial court abused its discretion when it order ed the parties to pay their own a ttorney ’s fe es; and

(7) Whether the trial court abused its d i s cr et i o n when it order ed Wife to pay a portion of the g uardia

n ad litem fee s.

Wife also prese nts issues on whether the trial court err ed in imputing income to Wife, whether the trial court erre d when it deeme d its awa rd of g uardia

n ad li tem fee s as ch ild support, and whether
t h e t rial court err ed when it place d a lien on Wife’s portion of Husband’s 401k to secur e W i fe ’s
pay ment of the g uardia

n ad litem fee s. Wife, howeve r, offe rs at b est skeletal arg uments on these issues supported by insufficient cit at i o n t o leg al authority or the rec ord. These arg uments are

Alt hough we den ie d Wi fe ’s m oti on to st ay, we bri ef ly del ayed dec id i n g thi s app eal whil e 2 0

at te m pti ng to verif

y whet her Wi fe ’s ar gum ent in ano the r app eal m ight af fe ct the valid it y of the st at ement of the eviden ce. Wi fe ass er te d in her m oti on tha t a sep ar at e app eal con cer nin g J udge Sto kes’s dec is ion not to

re cus e hi m sel f f

oll owin g his p urp ort ed r ece ipt of a dea th thr eat m ight void the st at ement of the evide nce

. Out of an a bund anc e of

ca uti on, we wai te d unt il th e f il ing of Wi fe ’s br ie f i n t he a for ementi one d ap pea l t o det er m ine whet her she off er ed any ar gum ent in tho se pro cee din gs tha t m ight af fe ct our abi li ty to re ly on the

cur re nt st at ement of the eviden ce. We ar e sat is fi ed she off er ed none

. We fur the r not e she did not ra is e the is sue of re cus al in thi s app eal or fi le a m oti on for con si der at ion of pos t- j udgem ent fa ct s re la te d to the al le ged dea th thr eat

.
-14-there fore waived. See Tenn. R. App. P. 27(a) (7); Tenn. Ct. App. R. 6(a)
, (b); Bean v. Bean, 40 2 1 S.W .3d 52, 55-56 (Te nn. Ct. App. 2000) (citations omitted).

III. Stand ard of Review

This Court revie ws a trial court’s finding s of fac t de novo upon the rec ord with a presumption of corr ectne ss. Tenn. R. App. P. 13(d). We will reve rse a trial court’s fac tual fi n d i n g o n ly if the evidenc e preponde rate s ag ainst it. Berryhill v. Rhodes
, 21 S.W .3d 188, 190 (Tenn. 2000) (citation omitted). The evidenc e will preponde rate ag ainst a trial court’s fac tual finding if the rec ord supports another finding of fa ct with g rea ter convincing evidenc e. Mosley v . McCanless , 207 S.W .3d 247, 251 (Tenn. Ct. App. 2006) (citations omitted). Fa ctual finding s based on the trial court’s assessment of witness cre dibilit y rec eive a highe r deg ree of defe renc e. See Keyt v. Keyt
, 244 S.W .3d 321, 327 (Tenn. 2007) (citations omitted) (citation omitted). We will overturn fac tual finding s that hinge on the cre dibilit y of the witnesses only if clear and convincing evidenc e demonstrates err or in the court’s conclusion. W

ells v. Tennessee Bd. of

Rege nts , 9 S.W .3d 779, 783 (Tenn. 1999). We revie w the trial court’s resolution of leg al questions de novo with no presumption of corr ectne ss. Bowden v. W ard , 27 S.W .3d 913, 916 (Tenn. 2000)

.

As we will explain here in, this Court revie ws most issues decide d in a divorce di spute for

an abuse of discretion. A trial court abuses its discretion if it (1) applies an incorre ct leg al standard, (2) rea ches an illogica l or unrea sonable decision, or (3) bases its decision on a clea rly err oneous

e v a luation of the evidenc e. Elliott v. Cobb
, 320 S.W .3d 246, 249-50 (Tenn. 2010) (citation omitted). A t rial court al s o ab u s es i ts discretion if it stray s bey ond the applicable l eg al s tandar ds or when it fails to proper ly consider the fac tors that customarily g uide a discretionar y decision. Lee Med., Inc.

v. Bee cher
, 312 S.W .3d 515, 524 (Tenn. 2010) (citation omitted). The abuse of discretion standard does not permit this Court to second- g uess the lower court’s j u dg ment or mere ly substitut e an alterna tive we pref

er. Id. (citations omitted). We must instead aff irm the discretionar

y decision so long as rea sonable leg al minds can disag ree about its corr ectne ss. Eldridge v. Eldridge
, 42 S.W .3d 82, 85 (Tenn. 2001) (citations omitted).

We st at e onc e again li ti gants can not exp ect thi s Cour t to do the ir work for the m

. Bean v. Bean

, 40 2 1 S.W .3d 52, 56 (T enn

. Ct. App. 2000) (c it at ion s om it te d). “I t is not the rol e of the cou rt s, tr ia l or app el la te , to re sea rc h or con st ruc t a li ti gant’ s cas e or ar guments for him or her

. . . .” Sne ed v. Bd. of Pro’ l Res pons ibi li ty , 301 S.W .3d 603, 615 (T enn

. 2010 ). T he advers ar ia l syste m of j ust ic e is pre m is ed on the ide a tha t “ap pel la te cou rt s do not si t as sel f- d i r e c t e d b o ar ds of le gal inq uir y and re sea rc h, but ess ent ia ll y as

ar bit er s of le gal que st ion s pre sen te d and ar gued by the par ti es bef ore the m .” Sta te v. Nort her n , 262 S.W .3d 741, 767 (T enn

. 2008 ) (Hol der
, J
., con cur ri ng in par t and dis sen ti ng in par t) (qu oti ng Card ucc i v. Rega n , 714 F.2d 171, 177 (D.C. Cir . 198 3)) (i nte rna l q uot at ion m ar ks o m it te d). T hus
, “whe re a p ar ty fa il s t o de velop

an ar gum ent in sup por t of his o r h e r c o n t e nti on or m er el y con st ruc ts a skele ta l ar gum ent , the is sue is wai ved.” Sne ed , 301 S.W .3d a t 6 15.

-15-IV. Analysis

This is not a complicated divorce case

. I t conce rns a short-term marria g e, two children, and 2 2

one marital asset. As Wife conce des in her brief, t h i s dispute “quickly beca me more about the divorce proce ss itself than the mar riag e.” Sca

ndalous ac cusations ar ose. My sterious threa ts wer e levied. DCS intervene d. Numerous petitions
, complaints, and mot ions wer e lodged. Substantial attorney ’s fee s and g uardia n ad litem fee s wer e incurre d. Numerous non-par ties found themselves, willingly and unwillingly
, at the cente r of a mounting storm. The result is a case that Wife candidly descr ibes as “bizarre in its proce dural history ” and a trial rec ord that spans thir ty -five volumes excluding a ve rbatim transc ript of the leng thy trial.

As in prior case s, the parties disag ree about “[j] ust how this case was d era iled into such malevolenc e and expense.” Andrews v. Andrews
, W2009-00161-COA-R3-CV, 2010 WL 3398826,
at *11 (Tenn. Ct. App. Aug

. 31, 2010) (quoting the trial court) (interna l quota tion mar ks omitted), perm. app. de nied (Tenn. Ma rch 9, 2011) . One mig ht arg ue the tortuous history of this c ase is y et another “mar

k of the failure of the leg al sy stem to eff ectively deal with and minimi ze the emotional and financ ial conflicts inhere nt in ending

. . . marria g e.” Id. (quoting the trial co u rt ) (interna l quotation m ar k s o mitted). For our part, we will not enter tain Wife’s reque st to further delay resolution of this case

. We will instead use the too l s at o u r disposal to provide the parties some sense of finality

.

A. Fin al Judgm ent

The first question befor e this Court is whether we must dismiss this appea l for lack of subject
matter jurisdiction. This Court’s subject matter jurisdiction is limit ed to final judgme nts except wher e otherwise provided by proce dural rule or statute. Baybe rry Assocs. v. Jones, 783 S.W .2d 553, 559 (Tenn. 1990) (citing Aetna Cas. & Sur. Co. v

. Miller, 491 S.W .2d 85, 86 (Tenn. 1973)). Rule 3(a) of the Te nnessee Rules of Appellate Procedur e provide s:

I n civil actions ever

y final judgme nt enter ed by a trial court from which an appea l lies
to the Supreme Court or Court of Appea ls is appea lable as of ri gh t

. E x cept as otherwise permitted in rule 9 and in Rule 54.02 Tenne ssee Rules of Civil Procedur e, if multipl e parties or m ultiple claims fo r relief are involved in an action, any order that adjudicate s few er than all the claims or the rig hts and liabiliti es of few er than all the parties is not enfor cea ble or appea lable an d i s s u bject to revision at any time befor e entry of a final judgme nt adjudicating all the claims, rig hts, a nd liabiliti es of all parties.

Tenn. R. App. P. 3(a)

. Be ca u s e t h e t rial court did not cer tify the final decr ee as final pursuant to Rule 54.02, the court’s order is appea lable as a matter of rig ht only if it resolves all the claims rig hts,

We do not downp la y the competi ng al le gatio ns of verbal and phys i cal abu se in the par ti es’ 2 2 ple adi ngs. Suc h al le gatio ns, however , ar e s adl y not un comm on i n di vorce cas es.

-16-and liabilities of the par ties.

W i fe contends the final decr ee of divorce in this case , which she appea led, is not a final judgme nt beca

use the trial court did not adjudicate two separ ate petitions for contempt she filed in 2006. We ag ree the cited petitions appea r to rema in unresolved. I t also appea rs to this Court t hat three additional petitions for contempt filed in 2005 rema in unresolved. Whil e these petitions may have been previously dismiss ed or adjudicate d as Husband sug g ests, the rec ord befor e us does not demonstrate the parties or the trial court resolved these matters prior to the entry of the court’s final decr ee of divorce

. The trial court’s final decr ee is there fore not a Rule 3(a) final judgme nt beca use it does not resolve all the claims, rig hts, and liabiliti es of the parties. See Davis v. Davis
, 224 S.W .3d 165, 168 (Tenn. Ct. App. 2006)

.

The absenc e of a final judgme nt pose s a problem. We ty pically dismiss appea ls f

rom nonfinal judgme nts for lack of subject matter jurisdiction. This Court h as , h o we ver, exercised jurisdiction over non-final judgme nts under the authority of Rul e 2 o f the Tenne ssee Rules of Appellate Proc edure . Rule 2 states:

For g ood cause , including th e inte rest of expe diting decision upon any matter , the Supreme Court, Court of Appea ls, or Court of Criminal Appea ls may suspend the require ments or provisi ons of any of t hese rules in a par ticular c ase on motion of a party or on its motion and may order proce eding s in a ccor dance with its discre tion, except that this rule shall not permit the extension of time for filing a notice of appea l
presc ribed in Rule 4, an application for permission to appea l to the Supreme Court from the denial of an application for interlocutory appea l by an intermediate appellate
court presc ribed in Rule 9(c)
, an application for permission to appea l to the Supreme Court from an intermed iate appellate court’s denial of an extraordinary appea l
presc ribed in Rule 10(b), an application for permission to appea l presc ribed in Rule 11, or a pe tition for reviewpresc ribed in Rule 12.

Tenn. R. App. P. 2 (empha sis added)

. Our supreme cour t has interpre ted Rule 2 to permit suspension of Rule 3(a) for g ood cause

. Baybe rry , 783 S.W .2d at 559.

This Court exercised its a uthority to suspe nd Rule 3(a) in Ruff v

. Raleigh Assembly of God Ch u r c h, Inc.
, W2001-02578-COA-R3CV, 2003 WL 21729442 (Tenn. Ct

. A p p

. Ju ly 1 4
, 2 0 0 3 )
, p e r

m

. app. denied (Tenn. Jan. 5, 2004). We explained:

I n order to suspend the require ments of Rule 3(a)
, this Court must aff irmatively show that the rule is suspended and must g ive a “g ood rea son” for the suspension. See B a yb erry Assocs., 783 S.W .2d at 559; see also Tenn. R. App. P. 2. The st at ed
purpose behind Rule 2 is to empower the courts “t o re l ieve litigants of the
conseque nces of noncompliance with the rules in those circ umstances in which it is
appropr iate to do so.” Te nn. R. App. P. 2 (advisory commission comment).

-17-Ruff

, 2003 WL 21729442, at *5. I n Ruff
, we found it appropr iate to relieve the appellant of

non compl iance with Rule 3(a) in an appea l “with a tortured history ” wher e the parties had been

en t an gl ed i n court proce eding s for over ten y ear s. Id. We rea soned suspension of Rule 3(a) wa s appropr iate under

the fa cts bec ause the parties de serve d some form of c losure. Id.

The parties in this hotly contested d i v o rc e case equally deser ve closure. The principal impediment to both parties moving on from their unsucce ssful experiment as a marrie d couple is the pending divorce dispute. I t is clea r the issues pending befor e this Court will rema in highly disputed until final re s olution of this case

. I t is also evident these parties will litigate any and all potential

source s of dispute arising in this or rela ted case s so long as this case is pending

. Although we do not favor the suspension of Rule 3(a)
, rema nding this case to the trial court to resolve the afor ementioned petitions for contempt would not fac ilitate revie w of the issues befor e us. I t would only cause further strife and delay

. We there fore find g ood rea son to suspend the require ments of Rule 3(a) and exercise jurisdiction over this appeal.

B. Record on Appeal

The nex t q u es t ion befor e this Court is whether the rec ord on appea l is so “cor rupt” as to prec lude m eaning ful revie w of the t rial court’s decision. Wife arg ues t he appellate record is both inadequa te and incapa

ble of corr ection despite her best attempts to prepa re an acc urate rec ord. She contends the trial court and the court cler k have submitt ed an incomplete and corr upt rec ord wher e: (1) the t rial court did not authentica te any of the exhibi ts included in the rec ord, (2) the rec ord contains seve ral larg e notebooks titled “Shem M almquist Ex hibits” that wer e not bef ore the court at trial, (3) the rec ord excludes at least one trial exhibi t, (4) the court cler k did not include the rec ord from the depende ncy

and neg lect proc eeding s, (5) the c ourt cler k did not include filings r elated to

an order of protec tion, and (6) the trial court’s statement of the evidenc e excluded the testimony of thirteen witnesses. She contends rema nd is nece ssary as a matter of due proce ss beca use she had no hand in cre ating the numerous defic iencies which preve nt full an d fa i r re v iew. I n addition to

rema nd, Wife asks this Court to order supplementation of the statement of the evidence t h roug h either the admission of the trial transc ript or the re -taking of the testimony in open cour

t.

Wife stands in a difficult position beca use it is first and fore most the app el l an t’s duty to provide a rec ord that allows meaning ful appellate revie w. Marra v. Bank of New Y ork
, 310 S.W .3d 329, 335 (Tenn. Ct. App. 2009) (citing Tenn. R. App. P. 24(b); McD onald v. Onoh
, 772 S.W .2d 913, 914 (Tenn. Ct. App. 1989))

. “T h e b u rden is upon the appellant to show that the evidenc e preponde rate s ag ainst the judgme nt of the trial court.” Outdoor Mgmt., LLC v. Thomas
, 249 S.W .3d 368, 377-78 (Tenn. Ct. App. 2007) (citing Capital City Bank v. Bake r , 442 S.W .2d 259, 266 (Tenn. Ct. App. 1969)). “The burden is likewise on the appellant to provide the Court with a transcr ipt of the evidenc e or a statement of the evidenc e from which this Court can deter mine if the evidenc e does preponde rate for or ag ainst the finding s of the trial court.” Id. at 378. “The result is g ener ally that wher e factual i s s u es ar e raised, without an appellate record containing the facts, this court cannot perf orm a de novo revie w or deter mine the preponde ranc e of the evidenc e.” Tarpley v. Hornyak
, 174 S.W .3d 736, 740 (Tenn. Ct. App. 2004) (citing Sherrod v. W ix
, 849 S.W .2d 780, 783 (Tenn. Ct. App.

-18-1992)). “The ref ore, in such case s, we usually assume that the rec ord, had it been prese rved, would have contained sufficie nt evidenc e to sup port the trial court’s fac tual finding s.” Id. (citations omitted).

We find no rea son to depar t from the traditional rules placing the duty to provide a sufficie nt

rec ord on the appellant. Any defic iency i n Wife’s position on appea l resulting from the abridg ed

acc ount of a very leng thy trial is attribut ab l e t o her. The sole rea son we are without a full and complete transcr ipt of the trial proce eding s is beca use Wife declined to procur e it. The only rea son the stat em en t o f t h e evidenc e does not include a more extensive rec itation of testimony alleg edly favor able to Wife is beca

use she did not provide the trial court with a fair, accura te, and complete

acc ou n t o f the proceeding s. Wife must now reap what she has sowed. I t would cre ate a perve rse incentive to rema

nd for furth er p ro ceeding s, including the reta king of evidenc e, wher e the sole impediment to unabridg ed revie w of the first trial—one producing a n u nfavor able result from Wife’s
perspe ctive—is Wife’s re fusal to proc ure the transcr ipt admittedly available to her.

We further conclude none of the alleg ed defic iencies in the rec ord aff ect o u r ability to evalua te the trial court’s decision. Wife has not shown that inclusion of the notebooks titled “Shem Malmquist Ex hibits,” the alleg ed remova l of at least one trial exhibi t, the absenc e of the rec ord from the depende ncy and neg lect proce eding s, or the alleg ed failure to include filings rela ted to an order of protec tion will imp ac t o u r d ec i s i on in any way

. The notebooks are easily ignor ed even if we

assume they wer e improperly included. The rec ord from the depende n cy an d neg lect hear ing is irrele vant with respe ct to the issues befor e us. Wife provides no indication of what t h e al l eged missing exhibi t—Volume 43 of the rec ord desig nates a handwr itten note marke d “Emails” as exhibi t #103—would demonstrate, who prese nted the exhibi t, or how it would alter this Court’s revie w. 2 3

Wi fe ass er te d at ora l ar gum ent s the m is si ng exh ibi t con ta ine d exc han ges bet ween her and the GAL 2 3 whic h she al le ged demonst ra te d the ra ci al bia s of the GAL. Wi fe
, however
, has pro vided thi s Cour t no bas is
upon whic h to det er m ine whet her her ass er ti on is tr ue. T he re cor d nevert hel ess con ta ins oth er tr ia l exh ibi ts al le gedly demonst ra ti ng the ra ci al bia s of the GAL. One exh ibi t, whic h pur por ts to be fr om the Ger m ant own Pol ic e Dep ar tment, c ont ai ns a m ugshot of Wi fe and st at es:

T HI S ASI AN WOM AN I S DANGEROUS AND HAS A HI ST ORY OF C R IM INAL ACT I V I T Y. LIK E M O S T A S I ANS WE WANT T O REMOV E T HI S [s ic ] HER FROM T ENNESSEE I

NT O A MENT AL I

NST I T UT I ON OR PRI SI ON [s ic ]. ACCORDI NG T O DR. HUT SON AND DR. ST EI NBERG MS. NI COLOSI HAS AN A N T I- SOCI AL DISO R D E R AND PSYCHOPAT HI C T ENDENCI ES (SOCI OPAT H). DUE T O MS. NI COLOSI [s ic ] UNST ABLE BEHAV I OR SHE I S NOT AL L O W E D A NY CONT ACT WI T H HER CHI LDREN. T HE CHI LDRENS [s ic ] AT T ORNEY, GI NA HI GGI

NS I S ASSI ST I NG US MAK I

NG SURE T HAT MS. NI COLOSI WI LL NEV ER BE ALLOWED T O SEE OR HARM T HESE CHI LDREN AGAI N. I F YOU HAVE ANY I NFORMAT I ON OR NEED CLARI FI CAT I ON ABOUT MS. NI COLOSI CALL LT

. MEL ONI E HOWE AT T HE ME MPHIS POLI CE DEPART MENT . 90 1- 373-3883.

(c ont inu ed.. .)

-19-The same is true for the paper s rela ted to an order of protec tion alleg edly not included in the rec ord. Of course , we could revie w Wife’s contentions in g rea ter detail had Wife provided the trial transcr ipt for our revie w. She did not, and we a re w ithout g ood rea son to f urther delay the resolution of this

case

. We rejec t the sug g estion that the trial cour t’s statement of the evidenc e does not provide a satisfac torily fair, acc urate , and complete acc ount of the t rial because the court did not rec ount all of the testimony of witnesses p u rp o rt ed l y favor able to Wife. Rule 24 of the Tenne ssee Rules of Appellat e Procedur e g overns the filing of a statement of the evidenc e wher e the transcr ipt is unavailable . I t states, in pertinent par t:

(c) Statement of the Evidence When No Report, Recital, or Transc ript I s Available. I f no stenog raphic repor t, su bstantially verba

tim rec ital or transcr ipt of the evidenc e or proce edings i s av ai lable, the appellant shall prepa re a statement of the evidenc e or proce eding s from the best available m ea n s , including the appellant’ s

rec ollection. The statement should convey a fair, acc urate and complete acc ount of what tr an s p i re d wi t h respe ct to those issues that are the bases of appea l. The statement, cer

tified by the appellant or the appellant’ s counsel as an acc urate acc ount of the proce eding s, shall be filed with the cler k of the trial court within 60 day s afte r filing the notice of appea l. Upon fi l i n g t h e statement, the appellant shall

(... con ti nue d) 2 3
A sec ond exh ibi t— an uns igned, typewr it te n le tt er pur por te dly fr om Husb a n d ’ s p r i vat e inves ti gator to the T enn ess ee Depa rt m ent of Com m er ce and I nsu ra nce —c ont ai ns s imila r l anguage:

I am at ta chi ng some add it ion al inf ormati on abo ut Dani el le Nic olo si Ma lmquis t. Mr s. Gina Higg ins
, ass igned to the Ma lmquis t chi ldr en [s ic ] cas e has re cen tl y pro vided m e wit h some add it ion al re por ts th at wil l a ssi st you in see ing th at Ms . Mal m qui st is not a sta ble per son

. Ms

. Higg ins ind ic at es tha t Ms

. Ma lmquis t [s ic ] Asi an ways have le ad [s ic ] her to be dri ven out of Shel by Count y and h e r chi ldr en [s ic ].

. . . Ms

. Ma lmquis t was det er m ine d to be a psychop at h by sever al cou rt app oin te d psychol ogist [s i c ] tha t ar e invol ved in thi s cas e. I have spo ken w i t h t he GAL on sever al occ asi ons and she is of the same opi nio n tha t I am abo ut the chi ldr en’ s saf

et y bei ng at ri sk ar ound Ms

. Ma lmquis t. Ms

. Higg ins bel ie ves tha t Ms

. Ma lmquis t [s ic ] uns ta ble Asi an Cult ure le ads her to be a ri sk ar ound her chi ldr en. T he ori ent al cou ple
, He’ s, who re cen tl y cau sed m any pro ble m s in Shel by Count y use d the ir chi ld
to esc ape dep ort at ion . Hope ful ly soo n M s. M al m qui st wil l b e de por te d ou t.

T o say the le ast , the aut hen ti ci ty of the se exh ibi ts was a sou rc e of dis put e. T hei r inc lus ion in t h e r e c o r d
nevert hel ess demonst ra te s the tr ia l cou rt had bef ore it eviden ce pur por te dly sho wing the bia s of the GAL due
to Wi fe ’s ra ce. Addi ti ona ll y, t he tr ia l cou rt spe ci fi cal ly not ed Wi fe ’s te st imony tha t the GAL w a s b i a s e d agains t Asi an -Am er ic ans

. T he tr ia l cou rt ’s fi nal dec re e implie dly re j ect ed the ass er ti on of bia s, the

cr edi bil it y of Wi fe
, and the re li abi li ty of h e r t r i al exh ibi ts

. I t is the re for e inc onc ei vable tha t the m is si ng exh ibi t, even if we ass um e it is not a st ack of emails pro vided el sewh er e in the re cor d, woul d unr avel the bas is for the tr ia l cour t’ s deci si on. We al so not e Wi fe ass er te d at oral ar gum ent s— but not in her app el la te bri ef —t hat Exhi bit s #65, #91, and #92 wer e m is si ng fr om the re cor d. T his st at ement was demonst ra bly fa ls e.

-20-simult aneously serve notice of the filing on the appellee
, acc ompanied by a short and

plain decla

rat ion of the issues the appellant intends to prese nt on appea l. Proof of service shall be filed with the cler k of the trial court with the filing of the statement. I f th e appellee has objections to the statement as filed, the appellee shall file objections there to with the cler k of the trial court within fiftee n day s afte r service of the decla ration and notice of the filing of the statement. Any

differ ence s reg arding the statement shall be se ttled as set forth in subdivision (e) of this rule.

. . . . (e) Correc tion or Modification of the Record. I f any matter p ro p erly includable is omitted from the rec ord, is improperly included, or is misstated there in, the rec ord may be corr ecte d or modified to confor m to the truth. Any differ ence s reg arding whet h er t he rec ord acc urate ly discloses what occur red in the trial court shall be subm itte d t o and settled by the t rial court reg ardle ss of whether the rec ord has been transmitted to the appellate court. Absent extraordinary circumstance s, the determination of the trial court is conclusive

. I f nece ssary , the appellate or trial court may direc t that a supplemental re cord be cer tified and tra

nsmitt ed.

Tenn. R. App. P. 24(c) , (e) (empha sis added).

The trial court’s decision to enter its own statement of the evidenc e amounted to an implied

rec og nition that Wife’s statement of the evidenc e did not fairly portray the events at trial. Although the trial court rec ited the re levant testimony of some of Wife’s witnesses, its de cision to e x clude a

rec itation of testimony by others might indicate a number of things. I t might indicate the trial court found such test i m o ny was unnece ssary to provide a fair, acc urate , and complete acc ount of what transpire d with respe ct t o the i ssues s er v i n g as t h e bases of this appea l. I t might indi cate the t rial court found such t estimony not cre dible or wholl y irrele vant. Or it might simply indicate the tr ial
court had an insufficient ba sis upon which to rec ount a ccur ately the testimony of these witnesses. I n any event, we conclude the trial court fulfilled its duty under the unique circ umstances of this case and find its deter

mination conclusive. The alterna tive, in our view, is to conclud e W ife did not provide a sufficie nt rec ord for

revie w and summarily

aff irm the trial cour

t’s decision. We instead choose to revie w the case on its merits. We also find g ood rea son under the fac ts to suspend the require ments of Rule 24 to the extent, if any , the trial court’s statement of the evidenc e provides an incomplete acc ount of the events befor e it beca use the court did not rec ount the testimony of all 30 witnesses who testified.

Finally
, Wife’s contention reg arding the trial court’s alleg ed failure to authentica te the trial exhibi ts does not persua de us she is entitled to rema nd. Rule 24 of the Tenne ssee Rules of Appellate Procedur e provide s, in pertinent par t:

(f) Approva l of the Record by Trial J udg e or Chance llor. The trial judge shall
approve the transcr ipt or statement of the evidenc e and shall authentica te the exhibi ts

-21-as soon as prac ticable afte r the filing there of or afte r the expiration of the 15-day

period for objections by appellee
, as the case may be, but in all events within 30 day s afte r t he ex piration of said per iod for filing objections. Otherw ise the t ransc ript or statement of the evidenc e and t h e exhibi ts shall be deeme d to have been approve d and shall be so considere d by the appellate court, except in cases wh er e such
approva l did not occur by rea son of the dea

th or inability

to act of the trial judg e.

Tenn. R. App. P. 24(f)

. Contrary to an asser tion in Wife’s brief, the court cler k fi l ed numerous volumes of exhibi ts individually and collectively stamped “F iled J un 01 2009 Clerk of the Courts” afte r the c ourt consider ed Wife’s statement of the evidenc e and Husba nd’s objection ther eto. The
court there afte r filed an order in J une 2006, enter ed nunc pro tunc to April 17, 2006, dece rtify ing the partial transcr ipts Wife filed. I mportantly
, t h e o rder submitt ed for revie w on appea l the court’s previous statement of the evidenc e “along with the exhibi ts which wer e authentica ted by this [c] ourt and here by made part of the rec ord.” We there fore disag ree the trial court failed to authentica te the exhibi ts in the r ecor d. Also, we ag ain find g ood rea son to excuse any technica l noncompliance, if
any , with the m andate s of R ule 24, noting W ife does not question the validi ty of t he trial exhi b i t s in the rec ord. We decline to rema nd this case and conclude the rec ord provides a satisfac tory basis for r eview.

C. All ocation of Parental Respon sibili ty

The next issue befor e this Cour t i s whether the trial court abused its discretion when it allocate d pare ntal responsibi lity for the parties’ two children. The allocation of pare ntal
respon s i b i l i t y is one of the m ost important decisions confronting the courts. Chaffi n v. Ell is
, 211 S.W .3d 264, 286 (Tenn. Ct. App. 2006) (citation omitted). The overr iding g oal of a trial court is to approve a pare nting plan that promotes the best interests and welfa re of the child, reg ardle ss of the
pare nts’ interests in the re sulting pare nting arr ang ement. Burden v. Burden
, 250 S.W .3d 899, 909 (Tenn. Ct. App. 2007) (citation omitted). “[I ]n fac t, the interests of the p a r en t s a re secondary to those of the children. ” Id. (quoting Adelsperge r v. Adelsperge r, 970 S.W .2d 482, 4 8 5 (T enn. Ct. App. 1997)) ( emphasis in orig inal) (inter nal quotation marks omitted).

“No hard and fast rules exis t for deter mining which [parenting ] arr ang ement will best serve

a child ’s needs; inquiry is fac tually driven and require s courts to car efully weig h numerous considerations. ” Hogue v. Hogue
, 147 S.W .3d 245, 251 (Tenn. Ct. App. 2004) (citing Gaskill v. Gaskill, 936 S.W .2d 626, 630 (Tenn. Ct. App. 1996)). Courts favor the rig ht o f t h e al t er n ati ve residential pare nt to rea sonable pare nting time. See Eldridge v. Eldridge
, 42 S.W .3d 82, 85 (Tenn. 2001) (citations omitted). Courts, howeve r, may limit or eliminate a pare nt’s unsupe r v is e d pare nting time if there is de finite evidenc e to show the exercise of that rig ht w ould je opardize the child. See id. (citations omitted) (interna l quotation marks omitted). The best interests and welfa re of a child
may require the trial court to place limit ations on the pare nting time of either or both of the pare nts. Hogue , 147 S.W .3d at 251 (c iting D v. K, 917 S.W .2d 682, 685 (Tenn. Ct. App. 1995))

.

“I n choosing which pare nt to desig nate as the primary reside n t i al pare nt for the child, the

-22-court must conduct a ‘compa rative f itness’ ana ly sis, requiring the court to deter mine which of the available pare nts would be compar atively more fit than the other.” Ellis
, 211 S.W .3d at 286 (citing Bah v. Bah
, 668 S.W .2d 663, 666 (Tenn.1983) ). “I n eng ag ing in this analy sis, the court must consider the fac tors set out in Tennessee Code Annotated § 36- 6-106(a ).” Id. (footnote omit ted). Trial courts have broad discretion when allocating pare ntal responsibility
, but their deter minations “must be based on the proof at trial and the applicable principles o f l aw

. ” Id. (citation omitted). “The decision fre quently hinge s on the cre dibilit y of the witnesses at trial, a matter that is within the sound discretion of the trial court; conseque ntly
, appellate courts are loathe to se cond-g uess a trial court’s c onclusion.” Id. at 286-87 (c itations omi tted).

Appellate courts revie w a trial court’s allocation of pare n t al responsibility for an abuse of discretion. See Fulbright v. Fulbright
, 64 S.W .3d 359, 365 (Tenn. Ct. App. 2001) (citation omitted). I t is not within the province of appell at e co u rt s to tweak a pare nting plan in hopes of achie ving a better res u l t t h an t h e trial court. See Eldridge
, 42 S.W .3d at 88. As our supreme court has explained,

When no error in the trial court’s ruling is evide nt from the re cord, the trial court’s ruling must stand. This maxi m h as specia l signific ance in case s revie wed under the abuse of discretion standard. The abuse of discretion standard rec og nizes that the tri al court is in a better position than the appellate court to make cer tain judgme nts. The abuse of discretion standard does not require a trial court to rende r

an idea l o rd er, even in matters involving [parental responsibilities]
, to withstand

reve rsal. Reversa l should not result simply beca use the appellate court found a “better ” resolution. See State v. Franklin, 714 S.W .2d 252, 258 (Tenn. 19 8 6) (“a ppellate court should not rede termine in r etrospec t and on a cold rec ord how the

case could have been better tried”) ; cf. State v. Pappas, 754 S.W .2d 620, 625 (Tenn. Crim. App. 1987) (af

firming trial court’s ruling under abuse of di scre tion standard while noting that action contra ry to action taken b y t h e t ri al court was the better
prac tice); Bradford v. Bradford, 51 Tenn. App. 101, 364 S.W .2d 509, 512-13 (1962) (same)

. An abuse of discretion can be found only when the trial court’s ruling falls outside the s pectr

um of rulings that might reasonably result from an app l ication of the corr ect leg al standards to the evidenc e found in the rec ord. See, e.g., State ex. rel Vaughn v. Kaatrude, 21 S.W .3d 244, 248 (Tenn. Ct. App. 2000).

Id. The trial court’s discretion, howeve r, is not unbounded. Hogue
, 1 47 S.W .3d at 251 (citation omitted). The court must base its decision upon proof a nd apply the appr opriate le g al principles. Id. (citation omitted).

The Gene ral A s s e mb ly h a s c odified two lists of fac tors courts must consider befor e allocating
pare ntal rig hts and responsibilities in a divorce case

. See Tenn. Code Ann. § 36-6-106( a) (2010); 2 4

T he exi st enc e of two sep ar at e st at uto ry fr ameworks tha t exp re ssl y app ly when al loc at ing cus tod y 2 4 (c ont inu ed.. .)

-23-Tenn. C o d e Ann. § 36-6-404( b) (2010). Tenne ssee Code Annotated section 36-6-106( a) require s

a trial court to deter

mine custody on the basis of the child’s best interests and “conside r all rele vant fac tors, including the following , wher e applica ble”:

(1) The love, aff

ection and emotional ties exis ting betwee n the p are nts or

car eg ivers and the child; (2) The dispositi on of the pare nts or car eg ivers to provide the child with food, clothing, me dical ca

re, e ducation and othe r nec essar y car e and the deg ree to which
a par ent or c are g iver ha s been the primary car eg iver; (3) The importance of continuity in the child’s life and the leng th of time the child has lived in a stable, satisfac tory environment; provided, that, wher e there is a finding
, under subdivision (a) (8), of child abuse, as defin ed i n § 3 9-15-401 or § 39-15-402, or child sexual abuse, as define d in § 37-1-602, by one (1) pare nt, and that a nonperpe trating pare nt or car eg iver has rel o cate d in order to flee the
perpe trating pare nt, that the reloc ation shall not weig h ag ainst an awa rd of custody ; (4) The stability

of the fa mily unit of the pare nts or car eg ivers; (5) The mental and phy sical hea lth of the pare nts or car eg ivers; (6) The home, school and c ommunity rec ord of the c hild; (7)( A) The rea sonable pref ere nce of the child, if twelve (12) y ear s of ag e or older; (B ) The court may hear the pref ere nce of a y oung er chil d o n reque st. The

(... con ti nue d) 2 4 and /or par ent al re spo nsi bil it y in a di vorce cas e c re at es roo m fo r c onf usi on o n pr eci sel y how cour ts sho uld
go abo ut dec idi ng suc h is sue s and how bes t to des cr ibe the re sul ts the y re ach

. T h e t e rms “cu st ody” and “vis i t a t i o n” fou nd in T enn ess ee Code Annot at ed sec ti on 36- 6- 101 et seq

. , whil e not ent ir el y ob sol et e, ar e out m ode d when con si der ing a det er m ina ti on of par ent al re spo ns i b il it y unde r T enn ess ee Code Annot at ed

sec ti on 36- 6- 401 et seq ., whic h was ado pte d in par t to cha nge the la nguage of chi ld cus tod y dec is ion s. See J ane t Lea ch Ric har ds, Ric har ds on Tenn ess ee Fami ly Law, § 8- 2(e ) (3d ed. 2008 ) (f oot not es om it te d). J udge Don. R. Ash, one of the le adi ng pro pone nts of re for m , exp la ins the nee d to re cas t the te rminol ogy of cus tod y dec is ion s: “T he ar cha ic te rms ‘c ust ody’ and ‘visi ta ti on’ con vey owner shi p over the chi ld and imply tha t one par ty is m er el y a visit or in the home. T hes e te rms sho uld be re pla ced wit h m ore use r- fr ie ndl y word s.” J udge Don R. Ash, Bri dge Over Trou ble W ate r: Chang ing the Cust ody Law in Tenn ess ee, 27 U. Me m

. L. Rev. 769, 801 (20 07) (f

oot not e om it te d). T he par ent ing pla n st at ute did j ust tha t, re pla ci ng the tr adi ti ona l con cep ts of j oin t le gal and physic al cus t o d y wit h a new con cep t: the re si den ti al par ent ing sch edu le

. 19A W. Wa lt on Gar re tt , Tenn ess ee Prac ti ce Ser ie s: Tenn ess ee Div orc e, Ali mony and Chil d Cust ody § 26: 3, at 78 (2d re v. ed. 2007 ). As a re sul t, tr adi ti ona l te rms suc h as cus tod y, visit at ion
, cus tod ia l par ent , and nonc ust odi al par ent have giv en way to new te rms, e.g ., “r esi den ti al sch edu le
, te m por ar y and per m ane nt par ent ing pla ns, pri m ar y

re si den ti al par ent , al te rna te re si den ti al par ent , and par ent ing re spo nsi bil it ie s.” Ric har ds, sup ra , at § 8- 2(e ) (f oot not es om it te d). T he Code nevert hel ess har bor s re m nan ts of the old re gim e whic h ar e equ al ly app li cab le
to the dec is ion of par ent ing is sue s bef ore us. Beca use the cha nge in te rminol ogy inc orp ora te d int o the
par ent ing pla n st at ute was int end ed to ins pir e par ti es to m ove b e yo n d t h e win-lose m ent al it y pre sen t in
pre vious dis put es over par ent al re spo nsi bil it y, see id.
, it is unc le ar why the le gisla tur e has not re vised oth er

s t a t u t o r y pro visio ns to inc orp ora te si m il ar te rms. We have at te m pte d in thi s opi nio n to re cas t the is sue s pre sen te d i n t he more use r- fr ie ndl y language.

-24-pref ere nces of older children should normally be g iven g rea ter weig ht than those of
y oung er c hildren; (8) Evidence of phy sical or emotional abuse to the child, to the other pare nt

or to any other person; provided, that, wher e there are alleg ations that one (1) pare nt has committed child abuse, as define d in § 39-15-401 or § 39-15-402, or child sexual abuse, as define d in § 37-1-602, ag ainst a family member, the court shall consider all evidenc e relevant to the phy sical and emotional safe ty of t he ch i l d
, and determine, by a clea r preponde ranc e of the evidenc e, whether s uch abuse has occur red. The court shall include in its decision a written finding of all evidenc e, and all findings of facts connec ted t o t h e ev i d en ce. I n addition, the court shall, wher e appropriate, ref er a ny issues of abuse to the juvenile cour t for fur ther proc eeding s; (9) The ch aracter and behavior of any other person who resides in or fre quents the home of a pare nt or car eg iver and the person’s i n t er ac tions with the child; and (10) Eac h pare nt’s or car eg iver’s past and potential for future perf ormanc e of
pare nting responsibilities, including the willingness and ability of eac h of the pare nts and car eg ivers to fac ilitate and encour ag e a close an d co ntinuing pare nt-child rela tionship betwee n the child and both of the child’s pare nts, consistent with the best interest of the child.

Tenn. Code Ann. § 36- 6-106(a ).

Tenne ssee Code Annotated section 36-6-404 require s courts to establish a perma nent pare nting plan in divorce case s. Tenn. Code Ann. § 36-6-404(a)

. T he perma nent pare nting plan must set forth a re sidential schedule in c onsideration of the following fac tors:

(1) The pare nt’s ability to instruct, inspire, and encour ag e the child to prepa re for a life of service
, and to compete succe ssfully in the society that the child fac es as an adult; (2) The rela tive streng th, nature , and stability of the child’s rela tionship with

eac h pare nt, including whether a pare nt has taken g rea ter responsibility for perf orming pare nting r esponsibiliti es re lating to the da ily needs of the child; (3) The willingness and ability o f ea ch of the pare nts to fac ilitate and

encour ag e a close and continuing pare nt-child rela tionship betwee n the child and the other pa rent, c onsistent with the best interests of the c hild; (4) Wil lful ref

usal to attend a court-or dere d pare nt educa tion seminar may be

cons i d er ed by the court as evidenc e of that pare nt’s lack of g ood faith in these
proce eding s; (5) T h e d i sposition of eac h pare nt to provide the child with food, clothing, medical c are , education and other ne cessa ry car e; (6) The deg ree to which a pa rent ha s been the primary car eg iver, define d as the pare nt who has taken the g rea ter responsibility for per fo rming pare ntal responsibilities;

-25-(7) The love, aff ection, and emotional ties exis ting betwee n eac h pare nt and the child; (8) The emotional needs a nd developmenta l level of the c hild; (9) The char acte r and phy sical and emotional fitness of eac h pare nt as it rela tes to eac h pare nt’s ability to pare nt or the we lfare of the c hild; (10) The child’s interac tion and in t er re l ationships with siblings and with signific ant adults, as well as the child’s involvement with the ch i l d ’s phy sical surrounding s, school, or other sig nificant a ctivities; (11) The importance of continuity in the child’s life and the leng th of time the child has lived in a stable, sa tisfactory environment; (12) Evidence of phy sical or emotional abuse to the child, to the other pare nt or to any other pe rson; (13) The char acte r and behavior of any other person who resides in or fre quents the home of a

pare nt and such pe rson’s intera ctions with the child; (14) The rea sonable pref ere nce of the child if twelve (12) y ea rs o f age or older. The court may hear the pref ere nce of a y oung er ch i ld upon reque st. The pref ere nce of older children s hould norm ally be given gr eate r weight than those of
y oung er c hildren; (15) Eac h pare nt’s employ ment schedule
, and the court may make

acc ommodations consistent with t hose sche dules; and (16) Any other fa ctors dee med re levant by the cour t.

Tenn. Code Ann. § 36- 6-404(b) (1)–( 16).

The trial court expressly relied on Tenne ssee C o d e An n otated sections 36-6-106( a) and -404(b) when a llocating pare ntal responsibility in this case

. Most of t he relevant statutory fac tors favor ed Husband. The court found Husband s er v ed as primary car eg iver to the children from Dec ember 2005 forwa

rd; Husband provided continuity and stability in the children’ s life; Husband exhibi ted a willingness to foster future good relations with Wife and believed t he children should have a close rela tionship with Wife; Husband tested re as o n ab l y well on the psy cholog ical

ex am i nations and had the financ ial wher ewithal to car e for the children; Husband maintained a flexibl e work schedule, a llowing him to work many day s out of t he home while t he children wer e with him; no ag ency assig ned to investiga te the numerous serious alleg ations ag ainst Husband with

2 5
respe ct to the children found evidence o f any intentional or acc idental wrong doings; and the Tenne ssee Bur eau of I nvestig ation found insufficient evidenc e to char g e Husband in the alleg ed rape of Wife.

Many of these f actor s, on the other hand, weig hed aga inst Wife’s position. The trial court found Wife visited the children inconsistently
, demonstrated an unstable environment, and did not fac ilitate a close and continuing rela tionship betwee n the children and Husband. Although Wife

Husb and exp la ine d at tr ia l he works m ai nly fr om home ar ra nging and m oni tor i n g f l i gh ts 2 5 worl dwid e.

-26-asser

ted the cost of visitation as a conce rn, the court noted Wife visited her psy cholog ist at least 60 times during the same period but visited her children less than half t h at number. Fur ther, Wife continued to reg ister economic complaints even afte r the trial court order ed Husband to pay half of the hourly fe e, visiti ng the children only twice betwee n September 2006 and Fe bruar y 2007. Additionally
, the court found Wife initiated eff orts to take the children back to California under the
g uise of a California custody order at a time when the court had full jurisdiction of the divorce matter and the de pendenc y

and neg lect ca se.

T h e court further found Wife did not far e particula rly well on the psy cholog ical examinations. The court rec og nized Wife rec eived multipl e mental heal th evalua tions but emphasized the findi ng s of Dr. Steinberg

. The Court relied on Dr. S teinberg ’s finding s that Wife

reve aled traits that border ed on delusional, showed tendenc ies to portray herse lf as a constant victim, and showed prosec utorial tendenc ies. Dr. S t einberg explained his ref ere nce to prosec utorial tendenc ies as descr ibing a person who acc uses and blames o th e r s c o u p le d w ith bizarrene ss consistent with para noid thinking. The court also place d relianc e on Dr. Stei nberg ’s testimony that Wife’s GAF score of 50 ref

lected a person with a low level of functioning
, g iving cause for conce rn. The
court added, “Wife will not seek to bring closure to this seeming ly endless litigation, despite her own trea ting psy cholog ist’s a dvice to bring an end to this litigation, which he states is the major source of her mental anxiety .” Fi n al ly
, the court emphasized that Wife fre quently rec eived trea tment by multipl e psy cholog ists and psy chiatrists and was taking sever al mood-altering medi ca tions at the time of the trial.

Not all fac tors favor ed Husband over Wife. The court found, for example, both parties demonstrated aff

ection for the children and the children had strong attachme nts to both pare nts. The
court also found no evidenc e that any person who resided in or fre quented either party ’s home posed

a threa t of potential harm to t h e ch i l d ren. Additionally
, the court found no evidenc e to show the

numerous alleg ations conce rning abuse of the children made throug hout this case wer e cre dible or that the children s u ffered from any of these alleg ed events. The court weig hed these and other fac tors befor e concluding in its discretion that Husband would serve as primary residential pare nt of the pa rties’ c hildren and Wife would r ece ive supervise d visitation.

Wife arg ues the trial court abused its discretion when allocating pare ntal responsibility

. She

asser ts the court place d too much emp h as i s o n Dr. Steinberg ’s repor t and testimony
, arg uing the
court should have g iven more weig ht t o the finding s of Drs. Hutson, Ciocca, and Ara nov. She further arg ues the trial court r elied too hea vily on the continuity

of plac ement, Husba

nd’s income,

an d W i fe ’s lack of visitation as fac tors supporting Husband. Acc ording to Wife, much of t h e damag ing evidenc e ag ains t h er re sulted from Husband’s leg al maneuve ring during the course of litigation, which she arg ues should not serve as the basis of the court’s decision on pare ntal responsibility

. She conclude s the trial court abused its discr etion when it named Husband primary residential pare nt, as well as when it restric ted her pare nting time without finding a substantial risk of har m to the children.

-27-Wife, h o we v er , cites to virtually no fac ts in the rec ord to support her position. She has 2 6 resultantly failed to demonstrate the evidenc e preponde rate s ag ainst the fac tual finding s underlying the court’s decision or to provide any basis u p o n wh i ch to overturn the trial court’s resolution of conflicting expert testimony in favor of Dr. Steinberg

. See Brown v. C r o wn Equip. Corp
., 181 S.W .3d 268, 275 (Tenn. 2005) (citation omitted) (stating “[t] he weig ht of t h e t h eo ri es and the resolution of leg itimate but competing expert opinions are matters entrusted to the t ri er o f fa ct”); Johnson v. Mid W

esco, Inc.
, 801 S.W .2d 804, 806 (Tenn. 1990) (citation omitted) (re cog nizi ng trial
courts have discretion to acc ept the opinion of one expert over that of another ); Estate of Fetterman v. K ing
, 206 S.W .3d 436, 445 (Te n n

. C t

. App. 2006) (citation om itted) (explaining the resolution of conflicting expert testimony falls within the province of the trier of fac t). Additionally
, Wife has failed to persua de us the trial court abused its discretion during its evalua tion of the rele vant statutory fac tors.

The clos er q u estion is whether the trial court abused its discretion when it limit ed Wife’s award o f pare nting time to supervised visitation. Tenne ssee Code Annotated section 36-6-406 permits a cour

t to lim it a pare nt’s residential pa renting time. I t provides, in pertinent pa rt:

(d) A pare nt’s involvement or conduc t m ay have an adver se eff ect on the child’s best interest, and the court may prec lude or limit any provisions of a pare nting plan, if any

of the following limit ing f actor s are found to exist afte r a he aring :

Wi fe ’s br ie f c ons is te ntl y v iol at es Rule 27 o f t he T enn ess ee Rule s of Appe ll at e Pr oce dur e whi ch 2 6

pro vides , in per ti nen t p ar t:

(a ) Bri ef of the Appel la nt. T he bri ef of the app el la nt sha ll con ta in unde r app rop ri at e hea din gs and i n t he o rde r h er e i ndi cat ed:

. . . . (7) An ar gum ent , whic h m ay be pre ced ed by a summ ar y of ar gum ent , set ti ng for th:

(A) the con te nti o ns of the app el la nt wit h re spe ct to the is sue s pre sen te d, and the re aso ns the re for
, i n c l u d i ng the re aso ns why the

con te nt i ons re qui re app el la te re li ef
, wit h ci ta ti ons to the aut hor it ie s and
app rop ri at e re fe re nce s to the re cor d (whi ch m ay be quot ed verbat im) re li ed
on; and (B) for eac h is sue , a con ci se st at ement of the app li cab le st and ar d of re view (whi ch m ay app ear in the dis cus si on of the is sue or unde r a sep ar at e he adi ng plac ed b ef ore th e di scu ssi on o f t he i ssu es) ;

. . . . (g) Refer enc e in Brie fs to the Reco rd. Exce pt as pro vided in rul e 28(c ), r ef er enc e in the bri ef

s t o t h e r eco rd sha ll be to the pages of the re cor d invol ved. I nte ll igibl e abb re viati ons m ay be used

. I f ref er enc e is m ade to eviden ce, the admissi bil it y of whic h is in con tr oversy, re fe re nce sha ll be m ade to the pages in the re cor d at whic h the eviden ce was ide nti fi ed, off

er ed, and re cei ved or re

j ect ed.

T enn . R. App . P. 2 7.

-28-(1) A pare nt’s neg lect or substantial nonperf ormanc e of paren t i n g responsibilities; (2) An emotional or phy sical impairment that interfe res with the pare nt ’s perf ormanc e of pa

renting responsibilities as defined in § 36- 6-402; (3) An impairment resulting from drug
, alcohol, or other substance abuse that interfe res with the pe rfor

mance of par enting responsibilities; (4) The absenc e o r s ubstantial impairment of emotional ties betwee n the
pare nt and the child; (5) The abusive use of conflict by the pare nt that cre ates the dang er of damag e to the child’s psy cholog ical deve lopment; (6) A pare nt has withheld from the other pare nt acc ess to the chil d fo r a protrac ted per iod without good ca use; (7) A pare nt’s criminal convictions as t hey rela te t o such par ent’s abilit y to pare nt or to the welfa

re of the child; or (8) Such other

fac tors or conduc t as the cour t e x pressly finds adver se to the best interests of the child.

Tenn. Code Ann. § 36- 6-406(d) (1)–( 8) (2010) . I n addition, the pare nting plan statute re quires the trial court to “[m] inimi z e t h e ch i l d ’s exposure to harmful pare ntal conflict.” Tenn. Code Ann. § 36-6-404( a)( 3).

We c onclude the trial court did not abuse its discr etion in a llocating pare ntal responsibility under the fac ts of this case , espec ially wher e the unusual and potentially harmful events conce rning th e c h ildr en cea sed afte r the court order ed supervision of Wife’s pare nting time on a temporar y b a s is

. We conclude the court proper ly acc ounted for the rele vant statutory fac tors when it named Husband primary residential pare nt. Also, the trial court restric ted Wife’s unsupervised pare nting time only
upon a finding of fac ts supporting its restric tion. To the extent the trial court err ed by not expressly stating its relianc e on Tenne ssee Code Annotated section 36-6-406, we conclude the evidenc e in the

rec ord supports the imposit ion of supervised pare nting time as set forth in the trial court’s order

. 2 7 We expressly find Wife’s instabilit y , mental health issues, abusive use of litigation to cre ate conflict, ref usal to promote a rela tionship b etween t he children and their fathe r, and attempt to remove the chil d re n from the jurisdiction are all such fac tors adver se to the best interests of the children and which support supervision of her pare nting time. We find definite evidenc e in the rec ord to d em onstrate that awa

rding Wife unsupervised pare nting time would jeopar dize the child re n phy sically

and emotionally

.

We disag ree with the sug g estion that Tenne ssee Code Annotated section 36-6-301 prec ludes the impositi on of super

vised pare nting time under the fa cts. That provision states:

Due to Wi fe ’s dec is ion not to pro cur e the ve r b a t i m t ri al tr ans cr ipt
, we ar e una ble to det er m ine 2 7 whet her add it ion al te st imony exi st s t o su ppor t t he c our t’ s de ci si on.

-29-After making an awa rd of custody
, the court shall, upon reque st of the non-custodial
pare nt, gr ant such rig hts of visitation as will enable the child and the non-custodial
pare nt to maintain a pare nt-child rela tionship unless the court finds, afte r a hear ing, that visitation is likely to endang er th e ch ild’s phy sical or emotional health. I n g ranting any such rig hts of visitation, the court shall desig nate in which p ar en t’s home each mi nor child shall reside on g iven day s of t he y ear , including pr ovisions for holiday s, birthday s of family members, vacations and other specia l occa sions. I f the court finds that the non-custodial pare nt has phy sically or emotionally abused the child, the court may require that visitation be s u p er v i s ed or prohibited until such abuse has cea sed or until there is no rea sonable likelihood that such abuse will rec ur. The court may not order the depar tment of children’ s service s to provide supervision of visitation pursuant to this section except in case s wher e the depar tment is the petitioner or intervening petitioner in a case in which the custody or g uardia nship of a child is at issue.

Tenn. Code Ann. § 36-6-301 (2010). The trial court g rante d Wife such rig hts as will e nable her to maintain a paren t -c h i l d rela tionship with her children if she so chooses. Although a finding of emotional or phy sical abuse permits the imposit ion of supervised visitation under the cited statutory provision, we disag ree that restric tion of Wife’s pare nting time is appropr iate only upon such finding s. The plain l an gu age of Tennessee Code Annotated section 36-6-301 sugg ests restric tion of vi sitation is appropr iate if unsupervised visit ation “is likely to endang er the chi l d ’s p h y s i cal or emotional health.” Tenn. Code. Ann. § 36-6 -301. Tenne ssee Code Annotated section 36-6-406 likewise permits the limit ation of any provision of a pare nting plan, including the provision rela ted
to the residential s ch ed u l e. I n light of our previous conclusion that Tenne ssee Code Annotated section 36-6- 406 applies here, we find ample support for the awa rd of supe rvised par enting time. The trial c ourt’s alloca tion of pare ntal responsibility is affirme d.

D. Transm utati on & C

om m ingli ng

The next question befor e this Court is whether the trial court err ed when i t classified the Ger mantown residenc e and its furnishing s as separ ate proper ty

. The first step in dividing a marital 2 8
estate is to identify all of the parties’ proper ty interests. Keyt
, 244 S.W .3d at 328 (citation omitted). The nex t step is to cl as s i fy t h e proper ty as either marital or separ ate. Id. (citations om itted). The

corr ect classifica tion of proper ty is essential beca

use the statutory provisions g overning divorce provide only for the equitable distribution of marital proper ty

. Batson v. Batson
, 769 S.W .2d 849, 856 (Tenn. Ct. App. 1988) (citation omitted). Parties are entitled to their separ ate proper ty without consideration of the equities betwee n them. Id. “B ec au s e the courts do not have the authority to make an equitable distribution of separ ate proper ty , whether separ ate proper ty should be considere d marital is a th re s h o l d matter.” Keyt
, 244 S.W .3d at 328 (citation omitted). “As such, a spouse seeking to include the other spouse’s separ ate proper ty in the marital estate has the burden of proving

Wi fe con ced es in her bri ef tha t Husba nd acqu ir ed the fur nis hin gs at is sue dur ing the purc has e of 2 8 the Ger m ant own r esi den ce.

-30-that the prope rty fits within the statutory

definition of marital prope rty .” Id. (citation omitted).

All rea l and persona l proper ty acquir ed prior to a marria g e is separ ate proper ty

. Tenn. Code Ann. § 36-4-121( b)(2) (A). Separa t e p ro p erty may never theless become part of the marital estate under the doctrines o f t ra n s mutation and commingling. Langschmidt v. L angschmidt
, 81 S.W .3d 741, 747 (Tenn. 2002)

. [Transmutation] o cc u rs when separ ate proper ty is trea ted in such a way as to g ive evidenc e of an intention that it become marital proper ty

. On e m et h o d of causing transmutation is to purcha se proper ty with separ ate fu n d s b u t to take title in joint
tenanc y

. This may also be done by placing separ ate proper ty in the names of both
spouses. The rationale underly ing both these doctrines is that dealing with proper ty in these way s cre ates a rebuttable p re s u m p t i o n o f a g ift to the marital estate. This presumption is based also upon the provision in many marital proper ty statutes that
proper ty acquir ed during the marria g e is presumed marital. The presumption can be rebut te d b y e v ide nce of circ umstances or communications clea rly indicating an intent that the prope rty

rema in separate.

Eldridge v. Eldridge
, 137 S.W .3d 1, 13-14 (Te nn. Ct. App. 2002) (quoting Batson, 769 S.W .2d at 858); accord W

oodward v. W

oodward
, 240 S.W .3d 825, 8 2 9 (T en n

. Ct. App. 2007) (quoting Langschmidt
, 81 S.W .3d at 747). “The rela ted doctrine of commingling conce rns instances wher e separ ate proper

ty become s marital proper ty when the separ ate proper ty is inext rica

bly mingled with marital proper

ty or the other spouse’s separ ate prop er t y .” Eldridge
, 137 S.W .3d at 14 (citation omitted). “Commingling does not occur if the separ ate proper ty can be trac ed into its product or if the sepa rate proper

ty continues to be seg reg ated.” Id. (citation omitted).

The trial court deter

mined the Ger

mantown residenc e and its furnishing wer e sepa rate proper ty

. The court relied on the following fac ts: (1) Husband purcha sed the home befor e the parties marrie d in October

2004; (2) Husba

nd purcha sed the home solely with his funds; (3) the de ed and promissory note to the proper ty wer e in Husband’s name only
, (4) Wife’s signa ture was not f ound
on any deed to the pr operty

or any closing documents; (5) Wife provided no evidenc e to show she made a s u b s ta ntial contribution to the prese rvation and appre ciation of the home during the marria g e; (6) Husband lived at the home, paid the notes on the proper ty , and maintained the proper ty the entire
per i od during which they lived there as a marrie d couple; and (7) Husband took no action to demonstrate transmutation of the proper ty to marital proper

ty

. The court further fo u n d ce rt ain vehicles owned prior to the marria g e wer e the separ ate proper ty of t h e p arties and that Wife’s clothing was h er separ ate proper ty

. I t conclude d eac h party was “veste d with his or her separ ate proper ty , fre e and c lear

of any claim by the other.”

Wife arg ues the trial court err ed when it deter mined the Ger

mantown residenc e and its

-31-furnishing s wer e separ ate proper ty

. She contends without a single citation to evidenc e in the rec ord 2 9 that the trial court err oneously classified said proper ty as separate “re ly ing only on the re cord title and the fac t that the Husband purcha sed the home prior to the marria g e.” Wife submits in her brief:

I n this case , there is no dispute that the parties had a joint bank acc ount from which the Husband dr ew the mone y for the dow n pay

ment of the mar ital residenc e ($74,000)

. There is no dispute that the parties resided toge ther in California prior [t o] the Husband's purchase of t he home and that th e W i fe ca m e to Tenne ssee and

m o v ed i n t o the residenc e with the Husband. There is also no dispute that t h e Husband continued to use his income (marital proper ty ) to pay the m ortg ag e indebtedness throug h the marr iag e and divor ce pr ocess.

Wife conclude s these alleg ed fac ts demonstrate her rig ht to “at least one-ha lf of the fair marke t value (or a t least one-ha lf of the down pay ment) and one-ha lf of the furnishing s from the rea l property

. . . .” We disag ree

.

Wife has failed to d e mo n s tr a te th a t the evidenc e preponde rate s ag ainst the trial court’s fac tual finding s or that the trial court err ed as a matter of law. She does not cite a single piece of evidenc e to support her asser t i o n s , nor does the evidence in the record contradict the court’s findings. The
statement of the evidenc e s h o ws Wife ag ree d at trial that Husband purcha sed the Ger mantown residenc e prior to their marria g e with proce eds from the sale of his California home. Although she purportedly helped Husband renova te the California home prior to its sale
, she was unable to produce
any rec eipts or re cords de monstrating she invested funds in the California proper ty or obt ained an

owner ship s t ak e i n the proper ty

. Whil e Husband conce des the parties established a joint bank

acc ount prior to the marria g e, he testified he purcha sed the home solely with f unds trac eable to his
separ ate a ssets.

As Husband explains in his brief, the trial exhibi ts supported a finding that he purcha sed the Ger mantown residenc e with his separ ate funds. The trial exhibi ts showe d he and Wife funded the joint bank acc ount with chec ks to Husband in the amount of $96,795 and a single chec k to Wife in the amount of $300. These deposits included one $80,000 chec k transfe rring funds from Husband’s
separ ate chec king acc ount at Chaffe y Credit Union, which repr esente d proce eds from the sale of his California home. Husband testified he there afte r purcha sed the Ger m an t o wn residenc e with a portion of these funds, withdrawing $74,000 from the joint bank acc ount. Our revie w of the rec ord supports Husband’s descr iption of these exhibi ts. We acc ordingl y fi n d t h e evidenc e does not preponde rate ag ainst the trial court’s conclusion that Husband purcha sed the Ger mantown residenc e with solely

his funds prior to the marr iag e.

T h e r e ma ining question is whether the evidenc e in the rec ord demonstrates th a t tr a n s mu ta ti o n or comming ling occurr ed. We ag ree with Wi fe’ s assertion that re cord ow nership of a n asset does

Wi f e ’ s bri ef re pro duc es le ngthy pas sages fr om pri or cas es add re ssi ng tr ans m uta ti on and 2 9

comm ingli ng but d oes not es ta bli sh wh ic h do ct ri ne s he r el ie s on her e.

-32-not alway s control its classifica tion. See Altman v. Altman
, 181 S.W .3d 676, 680-81 (Tenn. Ct. App.

2005). Courts may consider sever al fac tors when deter mining whether transmutation has occur red, including:

(1) the use of t he property as a marital residence ; (2) the ong oing maintenance and

m an ageme nt of the proper ty by both parties; (3) placing the title to the proper ty in joint owner ship; and (4) using the cre dit of the non-owne r spou s e to improve the
proper ty

.

Fox v . Fox , M2004-02616-COA- R3-CV, 2006 WL 2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006) (citation omitted). The t ri al co u rt place d littl e relianc e on Wife’s brief stay at the Ger mantown residenc e as a fac tor demonstrating transmutation. The co u rt instead emphasized fac ts showing Husband never titled the residenc e in Wife’s name, her name never appea re d on the documents rela ted to its purcha se, and Husband maintained the proper ty at all times d u ring the marria g e. Additionally
, Husband testified the residence remaine d titled in hi s n am e only
, even though W ife had asked him to title the proper ty jointly

. Having review ed the rec ord, we ag ree with the trial court’s deter

mination that transmutation did not occur

. We further co n cl u d e W ife has not demonstrated that commingling occur red. We acc ording ly aff

irm the trial court’s classifica tion of the Ger mantown re sidence and its furnishing s as sepa rate proper

ty

.

E. Ali m ony

The nex t question before this Court is whether the t rial court abused its discretion when it

aw arde d Wife four months of transitional alimony in the amount of $2,500. Tenne ssee Code Annotated se ction 36-5-121 pr ovides courts discr etion to a war d spousal support “ac cording to the
nature of t he case and the circumstances of the parties.” Tenn. Code An n

. § 36-5-121( a) (2010). This discretion includes authority to a war d “re habilitative alimony
, alimony in f uturo, also known as periodic al i m o ny , transitional alimony
, or alim ony in solido, also known as lump sum alimony

or a combination of these

. . . .” Tenn. Code Ann. § 36-5-121( d)(1)

. The intent o f t h e Gene ral Assembly is that “a spouse, who is economica lly disadvantag ed rela tive to the other spouse, be reha bilitated, whene ver possible, by the g ranting of an order for pay ment of reha

bilitative alimony .” Tenn. Code Ann. § 36- 5-121(d) (2) ( 2010).

Rehabilitative alimony is, howeve r, sometimes insufficient to support th e r e q uesting spouse. At other times, it is unnece ssary

. The Code there fore provides a number of options courts may consider when evalua ting the issue of alimony

. Courts may order the pay ment of long- term support until the death or rema

rriag e of the rec ipient wher e there is rela t i v e economic disadvantag e and reha bilitation is not fea sible, Tenn. Code Ann. § 36-5-121( d)(3) ; the pay ment of alimony in f

uturo instead of reha

bilitative alimony if reha

bilitation of the recipient is not fea sible; Tenn. Code Ann. § 36-5-121( d)(4) ; the pay

ment of alimony in futuro in addition to reha bilitative alimony if a spouse can only be par tially reha bilitated, Tenn. Code Ann. § 36-5-121(d)(4) ; the pay ment of transitional alimony if the court finds that reha bilitation is unnece ssary , but the economica lly disadvantag ed
spouse n ee d s assistance to adjust to the economic conseque nces of a divorce
, leg al separ ation or

-33-other proce eding
, Tenn. Code Ann. § 36-5-121( d)(4) ; and the pay ment of alimony in solido in lieu of, or in addition to, any other alimony awa rd wher e appropr iate, Tenn. Code Ann. § 36-5-121( d)(5)

.

Tenne ssee Code Annotated section 36-5-121( i) sets forth the fac tors g overning a trial court’s decision to awa

rd alimony , if any , to a re questing spouse:

(1) The rela tive ear

ning capa city
, obliga tions, needs, and financ ial resour ces of eac h party , including income from pension, profit sharing or retire ment plans and all other sourc es; (2) The rela tive education and training of eac h p ar ty , the ability and opportunity of eac h party to secur e such education and training
, and the nece ssity of

a party to secur e further education and training to improv e s u ch party ’s ear nings
capa city to a re asonable level; (3) The duration of the ma rriag e; (4) The ag e and me ntal condition of ea ch par ty ; (5) The phy sical condition of eac h party , including, but not limit ed to, phy sical disability

or inca pacity due to a c hronic de bilitating disease ; (6) The extent to wh i ch i t would be undesirable for a party to seek employ ment outside the home, beca use such party will be custodian of a minor child of the mar

riag e; (7) The separ ate assets of eac h party , both rea l and per s o n al
, tang ible and intang ible; (8) The provisions made with reg ard to the ma rital proper

ty , as def ined in § 36-4-121; (9) The standard of

living of the parties e stablished during the marr iag e; (10) The ex t en t t o which eac h party has made such tang ible and intang ible contributions to th e ma

r r ia g e a s mo n e ta

ry and homemaker contributions, and tang ible and intang ible contributions by a party to the education, training or incre ased ear ning
power of the other

party ; (11) The rela tive fault of the parties, in case s wher e the court, in its discretion, deems it appropr iate to do so; and (12) Such other fac tors, including the tax conseque nces to eac h party , as are

nece ssary to consider the e quities betwee n the par ties.

Tenn. Code Ann. § 36- 5-121(i)( 1)–(12) (2010).

I t is well-settled that the two most important fac tors rela ting to a trial court’s awa rd of alimony are the nee d of the economically disadvantag ed spouse and the opposing spouse’s ability to pa y

. E.g. W atson v

. W

atson , 309 S.W .3d 483, 497-98 (Tenn. Ct. App. 2009) (citation omitted); W illiams v. W

illiams
, 286 S.W .3d 290, 295-96 (Tenn. Ct. App. 2008) (citations omitted). The trial court’s evalua

tion of the rele v a

n t f a c to r s is never

theless entitled to considera ble defe renc e on appea l. “The amount, if any , and ty pe of alimony to be awarde d is wi t h i n the s ound discretion of the t rial
court in view of the particula r circ umstances of the case and a consideration of the rele vant fac tors

-34-set forth in Tenn. Co d e Ann. § 36-5-121( i)(1-12) .” Farnham v. Farnham
, 323 S.W .3d 129, 143

(Tenn. Ct. App. 2009); accord Aaron v. Aaron
, 90 9 S.W .2d 408, 410 (Tenn. 1995). “Appe llate
courts ar e, ther efor e, re luctant to second g uess a trial court’s decision reg arding alimony ‘unless it is not supported by the evidenc e o r i s co n t ra ry to the public policy embodied in the applicable statutes.’” W

atson , 309 S.W .3d at 497 (quoting Brown v. Brown , 913 S.W .2d 163, 169 (Tenn. Ct. App. 1994)).

Wife contends the trial court abused its discre tion when it awa rded her short-term, transitional alimony

. Her main contention is that the trial cour t focused too he avily

on the brevity of the marria g e when evalua ting the issue of alimony

. S h e al s o argue s, ag ain without sufficie nt citation to evidenc e in the re co rd t o support her factua l asser tions, that the t rial court should have focuse d more on the disparity of the parties’ income, Husband’s admitted aff air, and her signific ant financ ial need. W i fe concludes the court’s awa rd did not provide sufficie nt funds to aid her transition back into the workplac e. She acc ording ly reque sts an awa rd of reha bilitative alimony for three y ear s in the amount of $3,200 per month.

Husband arg ues the trial court did not abuse its di s cr et i o n. He arg ues the trial court appropr iately considere d the above statutory fac tors when awa rding alimony

. Husband arg ues Wife has not demonstrated a need for furt h er ed u ca t ion g iven her Ba chelor ’s Deg ree in Arc hitecture
, Master’ s Deg ree in Arc hitecture
, and Master’ s D e g ree in Real Estate Deve lopment. Husband further
arg ues Wife ref

used to work during the pendenc y of these proce eding s despite the admonishments of the trial court and despite establishing no phy sic al co n d i tion that would preve nt her from obtaining a job. Additionally
, Husband contends his ability to pay has diminis hed g rea tly as a result of these proce eding s, despite his monthly income of approximately $22,000. Husband explains the
prese nt divorce litigation has signific antly burdene d his f inancial estate, as well as require d him to support the p arties’ children since Dec ember 2005 without any assistance from Wife. Husband points to additional fac tors supporting the trial court’s decision including Wife’s conduct befor e and during the divorce
, the brevity of the marria g e, and the resulting lack of chang e in Wife’ s standard of living.

Having revie wed the rec ord, we find no abuse of discretion in the trial court’s decision. The
court expressly relied on the short duration of the marria g e, the ag e and mental condition of the parties, the standard of living during the marria g e, and the provisions made with reg ard to the marital
proper ty when evalua ting this issue. Wife has not demonstrated the trial court err ed when it r elied

on these fac tors nor has she pointed to evidenc e in the rec ord that would compel a contra ry conclusion. The deter

mination of alimony lies within the discretion of the trial court, which it ha s appropr iately exercised under t he facts of t h i s ca s e. W e aff irm the t rial court’s decision t o awa rd Wife four months of transitional alimony in the amount of $2,500.

F. Att orney’s Fee

s

We next consider whether the trial court abused its discre t i o n wh en it declined to awa rd attorney ’s fee s to Wife. Courts often trea t an awa rd of attorney ’s fee s as alimony in solido. W atson ,

-35-309 S.W

. 3 d at 5 0 0 (c i ting Y ount v. Y ount , 91 S.W .3d 777, 783 (Tenn. Ct. App. 2002); see also Gilliam v. Gilliam
, 776 S.W .2d 81, 86 (Tenn. Ct. App. 1988) (citing Crouch v. Crouch
, 385 S.W .2d 288, 294 (Tenn. Ct. App. 1964)). As with any other awa rd of alimony
, the deter

mination of whether
to awa rd attorney ’s fee s “is a mat t er fo r t he discretion of the trial court in view of the particula r circ umstances.” Aaron v. Aaron
, 909 S.W .2d 408, 410 (Tenn. 1995) (quoting Ingram v. Ingram
, 721 S.W .2d 262, 264 (Tenn. Ct. App. 1986) (interna l q u o tation marks omitted). Trial courts have discretion to deter

mine whether the rele vant statutory fac tors war rant an awa

rd of attorney ’s fee s in

a g iven case

. Owens v. Owens
, 241 S.W .3d 478, 495-96 (Tenn. Ct. App. 2007) (citations omitted)

. Appellate courts will not interfe re with that deter mination unless the trial court abuses its discretion. Aaron , 909 S.W .2d at 411; W atson , 309 S.W .3d at 500 (c itation omit ted).

An awa rd of attorney ’s fee s is appropr iate in most case s wher e the rec ord shows one spouse needs a n awa rd of fee s to de fra

y the costs of litiga tion and the other pa rty has the a bility to pay it. Fickle v. Fickle
, 287 S.W .3d 723, 737 (Tenn. Ct. App. 2008) (citing Riggs v. Riggs, 250 S.W .3d 453, 460 (Tenn. Ct. App. 2007); Harwell v. Harwell
, 612 S.W .2d 182, 185 (Tenn. Ct. App. 1980)). I t is also appropr iate wher e the economica lly disadvantag ed party incurs incre ased litigation ex penses due to the obstructionist tactics and leg al mane u v er i n g of the opposing spouse. Id. ; Gilliam
, 776 S.W .2d at 86-87. I t follows, howeve r, that courts may consider whether the economica lly disadvantag ed spouse is the party g uilty of using the judicial proc ess as a retaliatory wea pon. See Tenn. Code Ann. § 36- 5-121(i)( 12) (pe rmitting re liance on suc h other factors “as ar e nec essar y to consider the equities betwee n the parties” ). The fac t that the party eng ag ing in a course of conduct

cre ating substantial and otherwise unnece ssary att o rn ey ’s fee s is less financ ially secur e than the brea d-winning spouse does not immuniz e his or her co n d u ct

. Fur ther, the financ ial status of the culpable party

should not diss uade the court from discourag ing such conduct in the future throug h either the withholding or limitation of a fe e aw ard.

Wife arg ues the trial court abused its discretion when it made h er responsible for the attorney ’s fee s s h e incurre d during this leng thy divorce case

. She submits Husband’s actions primarily cause d her to incur a substan t i al p o rt i o n of her attorney ’s fee s during the course of litigation. She arg

ues, for example, that Husband’s actions nece ssitated her defe nse of a depende ncy and negle ct action, her filing of a federa l lawsuit to stop hara ssment by a Memphis police officer
, her att endanc e at multipl e costly psy cholog ical evalua tions, and her pay ment of incre ased fee s to spend time w ith he r children. Wife adds that an awa rd of fee s is a

ppropriate beca

use Husband is 3 0 i n a better position to pay them. She conclude s the trial court abused its discretion and as k s t h i s Court to rema

nd this case for a deter

mination on the amount of Wife’s fee s that Husband must pay

.

Husband responds t h at W i fe primarily cause d the enormous expense associate d with this

case . He a

rg ues:

We not e oth er par ti es fi le d dep end enc y and neglec t pet it ion s which al so req uir ed Wi fe to def end 3 0

a cha rge of dep end anc y and neglec t. Fur the r, Wi fe con sen te d to the sec ond and t h i r d p s yc h olo gical evalua ti ons

.
-36-i. I t was Wife that alleg ed that Husban d had attacke d her and children on November 30, 2005, but could provi d e n o evidentiar y support of her alleg ation, resulting in the matter be ing br oug ht before the J uvenile Court.

ii. I t was Wife who claimed Husband put g asoline on one of the minor children, resulting in a second J uvenile Court he aring

. Wife provided no evidentiar y support for the a lleg ation aside fr om her a lleg ation.

iii. I t was Wife who made claim that Husband had rape d her. Wife provided no evidentiar y support for the a lleg ation aside fr om her a lleg ation.

iv. I t was Wife who initiated action in Cali fo rn i a d uring the pendenc y of
proce eding s in Tenne ssee in an attempt to circ umvent the Tenne ssee Courts.

v. I t was Wife who initiated litigation ag ainst multipl e parties, including potential fac t witnesses for H usband, all ar ising out of this divorce action.

vi. I t was Wife who initiated litigation ag ainst Husband’s law y er.

vii. I t was Wife who made false aff idavit and attempted to g arni s h Hus band’s
wag es, eve n though the re w as no Court Orde r supporting such.

viii. I t was Wife that obtained Counsel in California in a second attempt to have California take jurisdiction reg arding the minor children.

Our revie w of the rec ord supports a conclusion that both parties contributed to the attorney ’s fee s incurre d during t h i s ca s e. I t further reve als, howeve r, that Wife initiated the majority of the costly
, time-cons u ming, and needle ss disputes. I t was W ife who continuously hurled accusa tions without evidentiar

y support. I t was Wif

e wh o i n itiated proce eding s in California in an eff ort to contra vene the pending Tenne ssee custody order s. And, as the t ri al court expressly found, it was Wife who would not seek closure in this “see mingly endless litigation.” We there for e find no 3 1 abuse of discretion in the trial c ourt’s dec ision to deny Wife’s reque st for attorne y ’s fe es.

G. Guardian A d Litem Fees

We consider a s a final matter whether the t rial court abused its discretion whe n it required Wife to pay half of the GAL ’s fee s previously order ed by the court and half of the balanc e due to the GAL in the amount of $17,000. Rule 17.03 of the Tenne ssee Rules of Civil Procedur e permits the appointment of a g uardia n ad litem “to defe nd an action for an infant or in co m petent person who

I t is al so Wi fe who has con ti nue d a si m il ar cou rs e of act ion on app eal

. Wh er eas the app el la te 3 1 fi li ngs in a typic al divor ce cas e fi t nea tl y wit hin a si ngle le gal- si ze fol der
, the fi li ngs in thi s cas e occ upy an ent ir e ba nker’ s bo x.

-37-does not have a duly appointed repr esenta tive, or whene ver justice require s.” Tenn. R. Civ. P. 17.03.

I t also provides a trial court discretion to “allow the g uardia n ad litem a rea sonable fee for service s, to be tax ed as costs.” Id. Appellate c ourts acc ording ly revie w an a

war d of g uardia

n ad litem fee s for an abuse of discretion. Keisling v. Keisling, 196 S.W .3d 703, 726 (Tenn. Ct. App. 2005) (citations omitted).

Wi fe challeng es t he reasonable ness of the GAL ’s fee request, sug g esting the GAL did not provi de an itemiz ed billing statement for the additional reque st of $17,000. Wife contends, analog izi ng to an awa

rd of attorney ’s fee s, that the party seeking an awa rd of g uardia

n ad litem fee s bear s the burden to demonstrate the reque sted fee s are rea sonable and rela ted to the litigation. She raises various arg uments about the responsibility of the person reque sting fee s to prese nt an aff idavit

or other proof itemiz ing the fee s, the rig ht of a party opposing the req u es t to cross-e x amine the
reque sting person as to the rea sonablene ss of the fee s, and the ability of the trial court to rely on its knowledg e of the case to determine a rea sonable fe e.

Wife’s position suffers fr om a fa tal defic iency , howeve r, eve n if we assume arguendo that decisions evaluating the rea sonablene ss of an a ttorney ’s fe es aw ard pr ovide g uidance on the i ssue befor e us. Wife cites to nothing in the rec ord to demonstrate whether the GAL testified re g arding her service s, whether the trial cour t denied Wife an opportunity to cross-e x amine the GAL with
respe ct to the rea sonablene ss of her fee s or to prese nt evidenc e on what a rea sonable fee would be, whether the t rial court made its deter mination based on an indepen d en t ev al uation of t he relevant fa ct o rs , wh ether Wife disputed the amount of the fee at trial, or whether Wife was denied an opportunity to challeng e the rea sonabl en es s of the GAL ’s fee throug h no fault of her own. See generally Madden Phillips Const., Inc. v. GGAT Dev

. Corp.
, 315 S.W .3d 800, 831 (Tenn. Ct. App. 2 0 0 9) (discussing the law applicable to a reque st for attorney ’s fee s); Robert E. Burch
, T r i a l Handbook for T

en nessee Lawyers § 33:16 (2009-2010 ed.) (same)

. The rec ord is silent on what transpire d at t rial wit h reg ard to g uardia n ad li tem fee s. We must there fore presume the evidenc e supported the awa

rd of fees an d ar e unable to conclude the t rial court abused its discretion. We 3 2 aff irm the trial cour

t’s awa rd of g uardia

n ad litem fee s.

V. Conclusion

Divorce case s can be emotional, d i fficult aff airs. This divorce has been espec ially contentious. The parties’ animosity towards one another has g rown to the point wher e the trial court felt it nece ssary to prohib i t the parties from contac ting eac h other for any rea son except wher e absolutely nece ssary

. We wish it we re n o t t he case , but the trial court’s action appea rs entirely

We not e, however
, the GAL fi le d at le ast one af fi davit con ta ini ng an it emiz ed bil li ng st at ement 3 2 wit h the tr ia l cou rt pri or to tr ia l. T his af fi d a vit con ta ins a det ai le d li st of the GAL’s ti m e and ef for ts

. I t demonst ra te s the GAL ded ic at ed nea rl y 250 hour s to thi s dis put e bet ween J uly 1
, 2 0 0 6
, a nd Febr uar y 8, 2007
, m uch of whic h Wi fe nec ess it at ed. Als o, we not e the pur e volum e of fi li ngs bef ore the tr ia l cou rt , the

ser iou sne ss of the al le gatio ns m ade
, and the overal l divis ivenes s of thi s cas e sugg est the awar d of guardi an ad l it em fees was ent ir el y reas ona ble

.
-38-prudent under the fact s

. T h e p arties offe r no sug g estion to the contra ry

. The resolution of this divorce case , howeve r, will not conclude the opportunities for dispute betwee n Husband and Wife. As we have seen in simil ar divorce s case s, the entry of a final decr ee is often seen as nothing but an invitation to move for its modifica tion. We ne verthe less hope the parties will exercise restra int a s they move forw ard, f

ocusing on the best intere sts of their childre n.

We admonish t h e p arties, particula rly Wife, to consider the following statement one Tenne ssee tria l judge traditionally share s with parents involved in a pa rentingdispute:

Your children have come into this world beca use of the two of y ou. Perhaps y ou two made lousy choice s as to whom y ou decide d to be the other pare nt. I f so, that is y our problem and y our fa

ult.

No matter what y ou think of the other party –or what y our family thinks of the other party –those children are one half of eac h of y ou. Remember that, beca use ever y time
y ou tell y our child what an idiot his fathe r is, or what a fool his mother is, or how bad the absent pare nt is, or what terrible things that person has done, y ou are telling the child that half of him is bad.

That i s an unforgi v ab le t hing to do to a child. That i s not love; it is possession. I f
y ou do that to y our childre n, y ou will destroy them as surely as if y ou had cut them into pieces, be cause that is what y ou are doing to their emotions.

I sincere ly hope y ou do not do that to y our children. Think more about y our children and less of y ourselves, and make y ours a selfless kind of love, not foolish or selfish, or they will suffer.

Ash, supra , at 771-72 (quoting a letter from J udg e Dotson Haa s, Walker, Minnesota that J udg e Don Ash traditionally rec ites) (interna l quota tion marks omitted). The time, e ffor t, a nd money spent in continual l itigation not only harms the parties emotionally and financially
, but it also harms thos e who have no choice in the matter: their children. The parties’ tumultuous time toge ther is over. We hope they will now focus to the best of their ability on providing a nurturing environment for their children.

Fo r the fore g oing rea sons, we aff irm the decision of the trial court and rema n d fo r considerat i o n o f an y outstanding petitions for contempt. Costs of this appea l are taxed to the appellant, Da

nielle Malmquist, for which e x ecution may issue if nec essar

y

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ D A V I D R

. F A R M E R
, J U D G E

-39-