IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 17, 2007 Session

THOMAS R. JONES, JR. v. HEATHER L. RUSCH-JONES

Appeal from the Fourth Circuit Court for Knox County

Nos. 97520 & 97555 Bill Swann, Judge

No. E2006-01998-COA-R3-CV - FILED JULY 19, 2007

Following a short marriage of less than four years, Thomas R. Jones, Jr. (“Father”) filed a complaint

for divorce from Heather L. Rusch-Jones (“Mother”). Mother filed a counter-claim also seeking a

divorce. Both parties sought to be the primary residential parent of their young daughter. While this

case was pending, both parties filed competing petitions for orders of protection. Father’s petition

was granted; Mother’s was not. Following a very lengthy trial, the Trial Court designated Father as

the primary residential parent and awarded Mother supervised and restricted co-parenting time. The

Trial Court awarded Mother a limited amount of alimony. Mother appeals raising numerous issues,

including a challenge to the Trial Court’s designation of Father as the primary residential parent and

the amount of alimony she was awarded. We affirm the judgment of the Trial Court and remand for

further proceedings consistent with this Opinion.

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

Fourth Circuit Court Affirmed; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which SHARON G. LEE, J., joined.

CHARLES D. SUSANO, JR., J., filed a separate concurring opinion.

John D. Lockridge and Sammi S. Maifair, Knoxville, Tennessee, for the Appellant, Heather L.

Rusch-Jones.

Virginia A. Schwamm and Donna H. Smith, Knoxville, Tennessee, for the Appellee, Thomas R.

Jones, Jr.
 Tenn. Code Ann. § 36-4-129(b) (2005) provides that the “court may, upon stipulation to or proof of any

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ground for divorce pursuant to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both parties

are entitled to a divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.”

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OPINION

Background

This is an appeal from an exceptionally contentious divorce proceeding. The parties

were married in July of 2000 and have a daughter who was born in March of 2003. Father filed a

complaint for divorce in June of 2004 alleging Mother was guilty of inappropriate marital conduct

or, in the alternative, that irreconcilable differences had arisen between the parties. Father sought

to be designated as the child’s primary residential parent. 

Mother answered the complaint and denied that she had engaged in any inappropriate

marital conduct. Mother filed a counter-complaint seeking a divorce claiming Father had engaged

in inappropriate marital conduct or, alternatively, that there were irreconcilable differences between

the parties. Mother likewise sought to be designated as the child’s primary residential parent.

There were numerous court proceedings involving temporary custody and temporary

support issues and the like before the trial. There also were issues surrounding competing petitions

for orders of protection filed by both parties. The Trial Court entered an order of protection against

Mother and ordered Mother to pay Father’s attorney fees incurred in the prosecution of the order of

protection. Mother’s request for an order of protection against Father was denied. Mother also filed

two motions to recuse during the course of these proceedings. Both of these motions were denied.

Following a lengthy trial, the Trial Court issued an extensive memorandum opinion

from the bench which, when transcribed, is over seventy-five pages in length. Both parties filed

post-trial motions and the final judgment later was amended. The end result was that the Trial Court

declared the parties divorced from each other pursuant to Tenn. Code Ann. § 36-4-129, after finding

both parties had established grounds for divorce. The Trial Court designated Father as the child’s 1

primary residential parent. Because the Trial Court found Mother to have some psychological issues,

Mother was awarded limited and supervised co-parenting time. The Trial Court made the property

distribution. The Trial Court refused to award Mother any rehabilitative alimony. The Trial Court

allowed Father and the child to remain in the marital residence. Mother was ordered to vacate the

marital residence immediately and Father was required to pay for Mother to stay in a hotel for one

week as transitional alimony. The Trial Court awarded to Mother as alimony in solido an amount

equal to one-half of the total payments Father had made on his student loans during the marriage.

Finally, the Trial Court noted that it had previously ordered Father to pay $7,500 toward Mother’s

attorney fees as alimony in solido. The Trial Court then stated that each party “shall hereafter be

responsible for the remaining attorney fees that they have incurred.”
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Mother appeals claiming: (1) the Trial Court erred when it failed to grant her motions

for recusal; (2) the Trial Court erred when it designated Father as the child’s primary residential

parent; (3) the Trial Court erred in restricting her co-parenting time and in requiring her co-parenting

time be supervised; (4) the Trial Court erred when it refused to award her rehabilitative alimony; (5)

the Trial Court erred in the amount of transitional alimony awarded; (6) the Trial Court erred with

regard to its award of attorney fees and discretionary costs; (7) the Trial Court erred when it granted

Father’s request for an order of protection; (8) the Trial Court erred when it made the order of

protection permanent; (9) the Trial Court erred when it awarded Father attorney fees incurred in

prosecution of the order of protection; (10) the Trial Court erred in the property distribution by

failing to award Mother certain items of property she claims were her separate property; and (11) the

Trial Court erred when it awarded Father a judgment for damages to his separate property allegedly

caused by Mother. Mother also challenges two evidentiary rulings of the Trial Court.

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and

we will not overturn those factual findings unless the evidence preponderates against them. See

Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal

issues, our review is conducted “under a pure de novo standard of review, according no deference

to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County

Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). 

The trial in this case lasted over twenty-five days with numerous witnesses. The most

significant trial testimony was discussed in some detail in the Trial Court’s detailed 75-page

memorandum opinion. Given the length of the trial and the number of witnesses, we will discuss

only the relevant highlights of the trial testimony and the Trial Court’s findings. 

Although the competing petitions for order of protection had in large part been

resolved by the time of trial, they nevertheless had an impact at trial. When granting Father’s

petition for an order of protection, the Trial Court made specific factual findings. The Trial Court

found that on one occasion Mother repeatedly hit and kicked Father and on another occasion Mother

hit Father on the back. Mother generally denied engaging in such conduct, but at trial witnesses were

called who testified that Mother had admitted to them that she had hit Father. In addition, at least

one witness testified that Mother stated she could have Father “offed.” In short, the facts do not

preponderate against the Trial Court’s determination that Father was the party in need of an order

of protection and that it was Mother who was the physically abusive spouse.

At trial, Father requested the order of protection be modified to allow for social

contact. Because the Trial Court concluded that Mother had violated the order of protection in

“many instances,” the Trial Court refused to modify the order of protection and instead made it
 The Trial Court found “perhaps as many as 26 violations of the no-contact order ... [which] are acts of 2

criminal contempt.” The Trial Court subsumed all of Mother’s violations of the order of protection into one count and

sentenced her to ten days of incarceration. However, the sentence was suspended.

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permanent. The evidence does not preponderate against the findings of the Trial Court relevant to

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its decision to make the order of protection permanent. Therefore, we find no reversible error by the

Trial Court in making the order of protection permanent.

Mother also claims the Trial Court erred when it awarded Father his attorney fees

incurred in prosecution of the order of protection. Mother further claims that her attorney should

have been permitted to depose Father’s counsel regarding the amount of the attorney fee that was

claimed.

Tenn. Code Ann. § 36-3-617(a) (2005) provides as follows:

Protection orders - Filing costs and assistance. – (a)

Notwithstanding any other provision of law to the contrary, the

petitioner shall not be required to pay any filing fees, litigation taxes

or any other costs associated with the filing, issuance, service or

enforcement of an order of protection authorized by this part upon the

filing of the petition. The judge shall assess court costs and litigation

taxes at the hearing of the petition or upon dismissal of the petition.

If the court, after the hearing, issues or extends an order of

protection, petitioner's court costs and attorney fees shall be assessed

against the respondent. (emphasis added)

Based on the unequivocal and mandatory language of the statute, the Trial Court properly awarded

Father his attorney fees and costs incurred in the prosecution of the order of protection. 

As noted, Mother claims the Trial Court erred because her attorney was not allowed

to depose Father’s attorney regarding the amount of attorney fees and expenses that were claimed.

In response, Father correctly points out that at the hearing on Father’s request for attorney fees,

Mother’s attorney was allowed to question Father’s attorney at length about the claimed fees and

expenses. Following that hearing, the Trial Court reduced the expenses sought by Father by one-half

and then awarded Father a judgment for fees and expenses totaling $4,408.43. Because Mother’s

attorney was afforded the opportunity to question Father’s attorney about the propriety of the claimed

fees and expenses, we find no error in the fact that Mother’s attorney was not permitted thereafter

to depose Father’s attorney. The amount of fees and expenses awarded to Father is affirmed.

The Trial Court found that Mother had problems with anger management and the

proof at trial certainly supports this conclusion. On at least two occasions Mother got angry and left

the courtroom in the middle of court proceedings and once even threw something and yelled at her

own attorney. Mother claimed that she suspected Father had sexually abused the child, but there was
 Dr. Elsbeth Freeman, Ph. D., is a clinical psychologist who evaluated both parties at the Trial Court’s request.

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 Mother’s family lives in New Jersey.

4

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absolutely no evidence, medical or otherwise, to support this horrific accusation. In fact, the proof

was that Father was a very good father and would never harm the child. According to the Trial

Court:

Dr. Freeman notes, and the Court finds, that the mother 3

played the child sexual abuse card with the pediatrician, suggesting

that the child should be examined because the mother “had concerns.”

Nothing was found, and the Court finds that the mere suggestion of

same is just an absolute impossibility ... for this father.

A neighbor testified at trial that she witnessed Mother’s attempt to back into Father’s

car which was being driven by Father at the time. Mother later apologized to the neighbor for doing

that in front of the neighbor’s child. Mother told the neighbor that she had “lost it” and was

“overreacting.” Mother admitted to this behavior at trial. The neighbor also testified that one week

after Mother and Father were married, Mother told the neighbor that she was going to divorce Father

and “take him for everything he had....” The Trial Court also set forth the following testimony from

the neighbor:

[Mother] told me that they fought a lot. She said that she bought a lot

of things for the house, that she would buy things on sale and just buy

them and store them.... She told me once that she threw the ring out

the window in an argument on the way to the Biltmore, later that she

did not do that, but that she had not told [Father], that she had kept it

and was going to go to New Jersey and would sell it. She told me this

at her house. She also said that if I were to see her in the back yard

with a shovel, [I] would know where [Father] was.

Father testified that Mother told him that he would never see his daughter again and

to get ready “for the custody case of your life.” Mother told Dr. Freeman that Father did not spend

any time at the hospital when the child was born, an assertion that was flatly contradicted by the

medical records from the hospital. 

During one of the parties’manyarguments, Mother supposedly threw a ring at Father

which later could not be found. Father had given Mother a valuable ring and it was this ring that

Mother allegedly threw at Father. When the ring could not be found, the parties made an insurance

claim and received $9,000. Father testified at trial that he later learned that Mother had intentionally

thrown another ring at him, and then took the valuable ring to New Jersey and pawned it. When 4

Mother was asked about this ring incident at trial, she refused to testify and invoked her Fifth

Amendment privilege against self-incrimination.
 Mother had these bills sent to the house of her friend, Allison Miller, who was called as a witness at trial and 5

who confirmed that certain bills were sent to her house.

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Mother would buy things and hide them from Father. According to Father, Mother

would make sure she got the mail from the mailbox, and he later learned that she did this so she

could hide certain bills. In fact, Mother went so far as to have some of the credit card bills mailed

directly to a friend’s house so Father would not find out how much credit card debt she had

incurred. Mother admitted on cross-examination that Father did not want her to obtain any more 5

credit cards, but she did anyway and charged over $20,000 on these additional credit cards. Mother

admitted to having a problem managing money. Mother was fired from two jobs during the

marriage, and fired from other jobs before the marriage. 

After the parties separated and Father initially moved out of the marital residence,

Father requested his clothes, as well as some furniture, sheets, and photographs of the child. When

he finally received this furniture, some of it had been ruined. For example, one piece of furniture,

which originally had belonged to Father’s grandmother, had deep gashes in it. A desk was broken.

Father’s clothes were ripped and torn. An open bottle of Gold Bond powder had been thrown into

a bag containing Father’s clothes, ruining those clothes. Inside the furniture, Father found several

photographs. There was an Easter family photograph and a wedding photograph, but the photos had

been cut up and everyone except Father had been cut out of the pictures. Mother denied damaging

the furniture and clothes, but she did admit to cutting up the photographs. According to Father,

Mother gave him some sheets, but they were sheets that had been used as drop-cloths when the

parties had painted themarital residence. The Trial Court found that Mother was responsible for this

damage to Father’s property. The Trial Court valued the items that were damaged or not returned

to Father at $2,150, and entered a judgment for Father in that amount. The facts certainly do not

preponderate against the Trial Court’s finding that Mother was responsible for damaging Father’s

property and the amount of that damage was $2,150. We affirm the judgment to Father in the

amount of $2,150.

We next will address whether the Trial Court erred when it denied Mother’s motions

to recuse. The first motion to recuse was filed in September of 2004. One of Mother’s primary

complaints was that the Trial Court continued with a “fifty-fifty co-parenting schedule” even though

the Trial Court at that time knew “very little about the physical history of the child.” Mother also

was dissatisfied with the Trial Court because the Trial Court had granted Father’s motion for a

protective order and request for attorney fees, but denied a similar motion filed by Mother. The Trial

Court denied the first motion to recuse, stating the “Court has no bias for or against either party, all

rulings having been rooted in the evidence presented at trial ....” 

Mother’s second motion to recuse was filed in November of 2005, after the trial was

over and the Trial Court had issued its memorandum opinion. Again, Mother claimed that the Trial

Court was prejudiced against her. Mother claimed the Trial Court made comments which Mother

perceived to be demeaning to her and praiseworthy toward Father. Mother further claimed that the

fact that the Trial Court ordered her visitation to be supervised was further evidence of the Trial
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Court’s lack of objectivity. Mother also points to the following comments made by the Trial Court

to her attorney when denying the second motion to recuse:

You attack the very essence of a judge’s job description and you’ve

done this before. I remember when I was a young judge on the bench

you had a case go against you strongly and, you know, it must be

because I had some sort of bias...

So when you get an adverse result, don’t attack the fact finder. If

anything, look at your own job performance. If you need to beat up

on somebody, beat up on yourself. Say I could have done this trial

better. Somebody’s got to be guilty, make yourself guilty, don’t make

the judge guilty.... 

When the Trial Court denied Mother’s second motion to recuse, the Trial Court made

several other observations in addition to those selectively emphasized by Mother. For example, the

Trial Court also stated:

Well, Mr. Lockridge, you equate adverse findings by a trial judge

with bias, with prejudice.... Now I think that you’re old enough and

long enough in the tooth to realize that there are clients that don’t

present as well as other clients and that when you represent clients

that don’t present as well as other clients, you’re likely to get an

adverse result... I have bent over backwards in both directions in this

case and that memorandum opinion in [this] case is absolutely

straightforward. 

“[W]hether recusal is warranted is left to the discretion of the trial judge, and such

decision will not be reversed absent a clear abuse of discretion on the face of the record.” Bd. of

Prof'l Responsibility of the Supreme Court v. Slavin, 145 S.W.3d 538, 546 (Tenn. 2004). Our

Supreme Court in Slavin also stated:

Tennessee has also recognized that “the preservation of the

public’s confidence in judicial neutrality requires not only that the

judge be impartial in fact, but also that the judge be perceived to be

impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App.

1998). Thus, recusal is also appropriate “when a person of ordinary

prudence in the judge’s position, knowing all of the facts known to

the judge, would find a reasonable basis for questioning the judge’s

impartiality.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d at 564-65

(quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App.

1994)). “Hence, the test is ultimately an objective one since the

appearance of bias is as injurious to the integrity of the judicial
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system as actual bias.” Id. We note, however, that the mere fact that

a judge has ruled adversely to a party or witness in a prior proceeding

is not grounds for recusal. Id.

Slavin, 145 S.W.3d at 548.

Father argues that Mother’s motions to recuse were nothing more than “claims that

every ruling made by the Trial Court that was not in her favor demonstrated the Trial Court’s

prejudice ... against her.” To be sure, Father was the more successful litigant. However, during the

course of this litigation, Motherfiled some motions that were granted and Father filed some motions

that were denied. Mother’s lack of success primarily can be attributed to the Trial Court’s

determination that Mother was abusive and that she was not being truthful. The Trial Court went

so far as to state that “this is a case, unfortunately, of widely disparate credibility... , and it does not

favor [Mother].” The Trial Court provided specific examples of contradictory testimony given by

Mother and why the Trial Court believed that testimony was untruthful. 

In Wells v. Tennessee Bd. of Regents, our Supreme Court observed:

Unlike appellate courts, trial courts are able to observe

witnesses as they testify and to assess their demeanor, which best

situates trial judges to evaluate witness credibility. See State v.

Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836

S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the

most favorable position to resolve factual disputes hinging on

credibility determinations. See Tenn-Tex Properties v. BrownellElectro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v.

Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly,

appellate courts will not re-evaluate a trial judge’s assessment of

witness credibility absent clear and convincing evidence to the

contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d

315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc.,

567 S.W.2d 169, 170 (Tenn. 1978).

Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). See also Lockmiller v.

Lockmiller, No. E2002-02586-COA-R3-CV, 2003 WL 23094418, at *4 (Tenn. Ct. App. Dec. 30,

2003), no appl. perm. appeal filed (“The cases are legion that hold a trial court’s determinations

regarding witness credibility are entitled to great weight on appeal.”); See also McBrayer v.

Smitherman-McBrayer, No. E2006-00040-COA-R3-CV, 2007 WL 187938, at * 5 (Tenn. Ct. App.

Jan. 25, 2007), no appl. perm. appeal filed (emphasizing the importance of assessing witness

credibility when a trial court is making a decree of primary residential status and establishing

visitation).
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Given the vastly contradictory testimony offered by the parties on various issues, the

Trial Court was required to make a credibility determination, and it did just that. There is no clear

and convincing evidence that the Trial Court’s credibility determination was in error. Keeping the

Trial Court’s credibility determination in mind, we believe the adverse rulings as to Mother were

based not on any prejudice against Mother or her attorney, but rather on a disbelief of her testimony

and a conclusion that she was abusive. While the Trial Court’s comment made to Mother’s attorney

concerning an incident between them when the judge “was a young judge on the bench...” was

inappropriate, it does not rise to the level of demonstrating any prejudice toward Mother or her

attorney. After thoroughly considering all of Mother’s various arguments on this issue, we conclude

that the Trial Court did not abuse its discretion when it denied Mother’s motions to recuse. 

The next issue is Mother’s claim that the Trial Court erred when it designated Father

as the child’s primary residential parent. In Burnett v. Burnett, No. E2002-01614-COA-R3-CV,

2003 WL 21782290 (Tenn. Ct. App. July 23, 2003), no appl. perm. appeal filed, this Court discussed

the relevant standard of review in child custody cases. We stated:

The standard of review on appeal for issues addressing child

custody and visitation was set forth by our Supreme Court in Suttles

v. Suttles, 748 S.W.2d 427 (Tenn. 1988), and recently reaffirmed in

Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001). In Suttles, the

Court acknowledged the general rule that:

Although ... “the details of custody and visitation with

children are peculiarly within the broad discretion of the trial

judge,” Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.

App. 1973), and that the trial court's decision will not

ordinarily be reversed absent some abuse of that discretion,

“in reviewing child custody and visitation cases, we must

remember that the welfare of the child has always been the

paramount consideration” for the courts. Luke v. Luke, 651

S.W.2d 219, 221 (Tenn. 1983)....

Suttles, 748 S.W.2d at 429. The Supreme Court further explained the

abuse of discretion standard in Eldridge, stating:

Under the abuse of discretion standard, a trial court's ruling

“will be upheld so long as reasonable minds can disagree as

to propriety of the decision made.” State v. Scott, 33 S.W.3d

746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273

(Tenn. 2000). A trial court abuses its discretion only when it

“applie[s] an incorrect legal standard, or reache[s] a decision

which is against logic or reasoning that cause[s] an injustice

to the party complaining.” State v. Shirley, 6 S.W.3d 243,
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247 (Tenn. 1999). The abuse of discretion standard does not

permit the appellate court to substitute its judgment for that of

the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920,

927 (Tenn. 1998).

Eldridge, 42 S.W.3d at 85.

Burnett, 2003 WL 21782290, at **5, 6.

A list of non-exclusive factors to be considered by the trial court in child custody

matters are set forth in Tenn. Code Ann. § 36-6-106(a) (2005) which provides, in relevant part, as

follows:

(a) In a suit for annulment, divorce, separate maintenance, or

in any other proceeding requiring the court to make a custody

determination regarding a minor child, such determination shall be

made upon the basis of the best interest of the child. The court shall

consider all relevant factors including the following where applicable:

(1) The love, affection and emotional ties existing between the

parents and child;

(2) The disposition of the parents to provide the child with

food, clothing, medical care, education and other necessary care and

the degree to which a parent has been the primary caregiver;

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

length of time the child has lived in a stable, satisfactory

environment; ... 

(4) The stability of the family unit of the parents;

(5) The mental and physical health of the parents;

(6) The home, school and community record of the child;

* * *

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

the other parent or to any other person; ... 
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(9) The character and behavior of any other person who

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

interactions with the child; and

(10) Each parent’s past and potential for future performance

of parenting responsibilities, including the willingness and ability of

each of the parents to facilitate and encourage a close and continuing

parent-child relationship between the child and the other parent,

consistent with the best interest of the child.

In making its custody determination, the Trial Court discussed the various factors as

follows: 

[L]et me note that both of these parents demonstrate characteristic

one, “love, affection and emotional ties” between themselves and [the

child]. As to criteria two, both have the disposition to provide her

with food, clothing, medical care and other necessary care. Mother

was the primary caregiver when the child was very young. The father

has been very active in her life throughout, and when this case began,

a 50/50 caretaker of the child. He did well during that period of time,

as did mother.... Factor three is not relevant. Factor four is the

stability and respective family unit of [the] two parents. This is of

limited relevance. The mother appears to have an excellent

stepfather; the father has an excellent mother. Factor five is

extremely relevant: mental and physical health of respective parents.

Factor eight, the evidence of physical or emotional abuse to the other

parent, is extremely relevant ... and it reflects very badly on the

mother, as does ten, the willingness and ability of each to facilitate

and encourage a close and continuing parent/child relationship

between the child and the other parent. 

The Trial Court properly considered the pertinent statutory factors. Given the

evidence contained in the extensive record before us, we conclude that the Trial Court did not abuse

its discretion when it determined that, overall, the relevant factors favored Father and that it was in

the child’s best interest for Father to be the primary residential parent.

The next issue involves the amount of Mother’s co-parenting time and the

requirement that her visitation be supervised. When the Trial Court initially declared the parties

divorced and designated Father as the primary residential parent, Mother was awarded standard coparenting time which did not have to be supervised. Father filed a post-trial motion seeking to

restrict Mother’s co-parenting time because, according to Father, his daughter told him “You’ve been

mean to Mommy and stole her house and she has to move far, far away back to New Jersey....” The

child apparently made similar comments to her care-giver. Father also claimed:
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Since the close of proof in this matter, the Mother has made

statements to the Father that cause him continuing concern about the

Mother’s psychological stability. Specifically, on October 4, 2005,

the eve before the Memorandum Opinion was delivered to the parties,

the Mother called the Father and told him that she knew where the

Father’s attorney lived, and knew what color and make of car the

Father’s attorney’s children drove. 

Following a hearing on the allegations made by Father in the above motion, the Trial Court credited

Father’s testimony and reduced Mother’s co-parenting time and directed that her co-parenting time

be supervised. 

Given Mother’s behavior throughout the marriage and the course of these

proceedings, it certainly is understandable why the Trial Court ruled the way it did. Nevertheless,

we believe it is in the best interest of the child for Mother to have more co-parenting time with the

child and that her co-parenting time should be unsupervised. We, however, are reluctant to

definitively institute such a requirement at this time because this Court does not have before it any

proof concerning Mother’s post-trial behavior, including additional inappropriate behavior, if any.

Therefore, on remand, the Trial Court is instructed to conduct a hearing on this issue. If Mother has

not engaged in further inappropriate behavior post-trial which would rise to the level of necessitating

that her visitation continue to be supervised, then the Trial Court is instructed to enter an order

providing Mother with standard, unsupervised co-parenting time.

The next issue is whether the Trial Court erred when it denied Mother’s post-trial

motion to have certain property deemed her separate property. Local Rule 10 of the Knox County

Fourth Circuit Court provides, in relevant part, as follows:

10. Pre-Trial Stipulations as to Separate and Marital

Property. At least forty-eight (48) hours before the day of trial, the

parties shall file with the Clerk three (3) JOINTLY EXECUTED

AGREED STIPULATIONS as to real and personal property, setting

forth, pursuant to the criteria of Tenn. Code Ann. § 36-4-121: (1) the

real and personal separate property and debt of each of the parties; (2)

the real and personal marital property and debt of the parties; (3) the

remaining real and personal property and debt of the parties, the

character of which is disputed and to be decided by the Court. This

last item consists of all real and personal property and debt of the

parties not covered under the first two stipulations.... (emphasis in

the original)

The parties complied with this local rule and submitted to the Trial Court a listing of

items the parties deemed separate or marital property, along with a listing of disputed items. When

the joint stipulation was presented to the Trial Court prior to trial, Father was not living in the marital
 The amount of Mother’s share of the equity was to be reduced by the $4,408.43 in attorney fees and expenses

6

Mother owed Father, any unpaid court costs associated with the order of protection, and the $2,150 judgment against

Mother for the destruction of Father’s property discussed previously. 

 The Trial Court entered a post-trial order altering the payment schedule. According to the new order, Father 7

was to pay Mother $30,000 by June 11, 2006, and then no less than $20,000 per year thereafter until the entire $120,000

was paid. Simple interest was to accrue beginning June 11, 2006, at the rate of 71⁄2% per year.

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residence, and Mother was. Following the trial, the Trial Court awarded the marital residence and

responsibility for the corresponding three mortgages to Father. There was approximately $27,000

to $28,000 in equity. The Trial Court ordered that the mediator’s fees, Dr. Freeman’s fees, and the

court costs be paid from the equity. The remaining equity was to be divided 50/50 between Mother

and Father. Father had two individual retirement accounts with a combined approximate value of 6

$7,370, which the Trial Court divided 50/50. The Trial Court valued Father’s interest in a company

he operated at $240,000. The Trial Court divided this asset 50/50 and ordered Father to pay Mother

$60,000 within 45 days and the remaining $60,000 over the next twelve months at the rate of $5,000

per month. The Trial Court ordered Father to pay additional debt totaling $42,000, which consisted 7

of a Bank of America Visa debt of $21,000, a Chase Visa debt of $12,000, and a debt to a local

credit union of $9,000. Mother was ordered to pay approximately $22,900 in various other credit

card debt. Mother was awarded as her separate property a ring valued at $15,000.

After the Trial Court classified and divided the most significant items of marital

property, divided the marital debt, and classified certain property as separate property of Father or

Mother, all of the remaining property was deemed “line item property.” The Trial Court instructed

the parties to divide this propertywith Mother making the first selection, then Father making the next

selection, and so on and so forth until all of the property was selected. The parties did just that.

Mother filed a post-trial motion claiming that she had neglected to include certain

items of her personal property on the Local Rule 10 list of property. As a result, this property was

not classified as her separate property because the Trial Court was not aware it existed. Mother

claimed these items were gifts from her parents and should have been awarded to her as her separate

property. Father claimed some of these items were marital property. The Trial Court denied the

motion, stating, inter alia, that: 

[a]ny separate property or any marital property could have been and

should have been stipulated or disclosed. And then we’ve gone

through, disclosed as disputed status property. And we’ve had a

classification argument. We did. These things are simply omitted.

And in a case of this length, in particular, that is inexplicable.... At

some point, the trial preparation phase ends, and the case goes to trial.

Mother’s motion is nothing less than her request to reopen the proof to allow further

testimony regarding the items she neglected to include in the Rule 10 list and to reopen the proof

regarding how these items should be classified, i.e., as marital or separate property. We will treat
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Mother’s motion as a Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. We review a

trial court’s determination of whether to grant a Rule 59.04 motion to alter or amend a judgment

under an abuse of discretion standard. See Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003).

We conclude that the Trial Court did not abuse its discretion when it denied Mother’s motion to

reopen the proof following a very lengthy trial simply because Mother neglected to include certain

items of property on the list as required by Local Rule 10 or because Mother neglected to update that

list prior to trial or even any time during this lengthy trial. We note that Mother was living in the

house both when the Rule 10 list was submitted to the Trial Court and during the trial. Mother

acknowledges in her brief that many of these items were purchased by her parents when her parents

were living with her in the marital residence over the summer. Mother has set forth no justifiable

reason explaining why she did not include these items on the Local Rule 10 list or why she neglected

to update that list before the parties divided the line items. The Trial Court’s denial of Mother’s

motion is, therefore, affirmed.

The next issues surround alimony. The factors to consider when determining whether

to award alimony are set forth in Tenn. Code Ann. § 36-5-121(i) (2005), which provides as follows:

(i) In determining whether the granting of an order for

payment of support and maintenance to a party is appropriate, and in

determining the nature, amount, length of term, and manner of

payment, the court shall consider all relevant factors, including:

(1) The relative earning capacity, obligations, needs, and

financial resources of each party, including income from pension,

profit sharing or retirement plans and all other sources;

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

ability and opportunity of each party to secure such education and

training, and the necessity of a party to secure further education and

training to improve such party’s earnings capacity to a reasonable

level;

(3) The duration of the marriage;

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

(5) The physical condition of each party, including, but not

limited to, physical disability or incapacity due to a chronic

debilitating disease;

(6) The extent to which it would be undesirable for a party to

seek employment outside the home, because such party will be

custodian of a minor child of the marriage;
 The Trial Court noted that Mother’s most recent employment was as a catering sales manager making $36,000 8

annually. When child support was set following the trial, Mother at that time was earning $48,000 per year, which did

not include an unidentifiable amount of income as gratuity. 

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

tangible and intangible;

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

as defined in § 36-4-121;

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

marriage;

(10) The extent to which each party has made such tangible

and intangible contributions to the marriage as monetary and

homemaker contributions, and tangible and intangible contributions

by a party to the education, training or increased earning power of the

other party;

(11) The relative fault of the parties, in cases where the court,

in its discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to

each party, as are necessary to consider the equities between the

parties.

When making its ruling on alimony, the Trial Court discussed the above statute and

stated as follows:

There are 12 factors for spousal support. Many of them have been

dealt with under equitable distribution [of the marital property.]

Some of them have not been spoken to. I would note, again, factor

three is relevant; this is a brief marriage. I would note, again, wife’s

separate assets of $15,000. I would note, again, that the relative fault

of the parties applicable to the spousal support statute favors the

husband....

This is not a case for any significant spousal support. It is a

brief marriage. In no way has the mother impaired her career or

ability to make at least $36,000 a year. She has let her college 8

education languish, but that was her own choice. She presents no

cogent plan for further education and no proof whatsoever of

enhanced earning power through such education. Whether she
 This amount of Father’s student loan payments made during the marriage was later determined to be $10,395, 9

thereby resulting in a judgment to Mother in the amount of $5,197.50. 

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pursues it or not is her choice. The Court accordingly cannot find that

the same would enhance her earning power, but who knows what the

future holds? She suggests that she should have rehabilitative

alimony of $3,000 per month for 48 months to finish her

undergraduate education, to start after her daughter begins school.

Well, the Court cannot find that rehabilitation is feasible, appropriate

or proper, but we do note that there were some payments made upon

the husband’s student loans during the marriage, education completed

before the marriage. Some payments were made upon the husband’s

student loans during the marriage. I either did not note the amounts,

or they did not fall in the testimony, but whatever that amount may

be, a judgment for the wife of 50 percent of that number to assist her,

if she chooses, in her own education. That number is pronounced as

9

alimony in solido. Given the extreme financial load placed upon

[Father] otherwise in this opinion, the payment of that number can be

at a schedule far more relaxed than the schedule announced above.

The Court does not find the wife in need of rehabilitation.

Indeed, she does not need further education. She earned $36,000 at

her last job and was rising in her field of hotel and catering sales

when she left her last employment....

Our legislature tells us that transitional alimony is for a

determinative period of time, and it is awarded when the Court finds

that rehabilitation is not necessary, but the economically

disadvantaged spouse needs assistance to adjust to the economic

consequences of a divorce, legal separation or other proceeding where

spousal support may be awarded. There shall be some transitional

alimony addressed below. It is non-modifiable. 

The Legislature gives us another option for spousal support,

which is called lump sum alimony or alimony in solido; I’ve spoken

to that above. It is the only alimony in solido that will be pronounced

in this cause. I touched upon attorney fees. The Court notes that the

husband already paid $7,500 as alimony toward wife’s attorney fees.

Noting that, each party shall hereafter be responsible for the

remaining attorney fees that they have incurred. 

* * * 
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It is most painful for this judge to inject yet another negative

note in this already sad case, but the Court has already found that the

wife has withheld from the husband at separation his clothing, his

family furniture, all the contents of the home, save the sheets that

were used for painting drop cloths, and maliciously damaged his

clothing and furniture before it was finally delivered. She simply

cannot be left in the home to serve as a trustee for these items for

these two parties. There is substantial furniture and furnishings. She

cannot serve as trustee. It would be negligent of this Court to allow

that to happen. This Court will not endure any more litigation as to

what items were damaged by the wife over the next seven days or

what disappeared or what’s not there. 

Accordingly, she is not to return to the home today .... This

is highly irregular, but this case has been highly irregular in every

aspect. Her agent or agents shall go to the home today, in the

presence of the husband and his counsel, and remove her clothing and

uniquely personal effects, as well as 50 percent of all linens and

towels. The entire transaction shall be videotaped.... It is to be

anticipated that the wife will lodge in a hotel for the next seven

nights. The Court directs that the husband shall today book and

guarantee payment for seven nights’ lodging at the Knoxville

Marriott.... This is a non-modifiable incident of transitional alimony.

Tennessee courts have stated on numerous occasions that a trial court has broad

discretion in determining the type, amount and duration of alimony, depending on the particular facts

of each case. See, e.g., Wood v. Wood, No. M2003-00193-COA-R3-CV, 2004 WL 3008875 at *4,

(Tenn. Ct. App. Dec. 28, 2004), app. denied June 27, 2005 (citing, inter alia, Burlew v. Burlew, 40

S.W.3d 465, 470 (Tenn. 2001) and Sullivan v. Sullivan, 107 S.W.3d 507, 511 (Tenn. Ct. App.

2002)). Appellate courts are disinclined to second guess a trial court’s decision regarding alimony

unless it is not supported by the evidence or is contrary to public policies reflected in the applicable

statutes. Nelson v. Nelson, 106 S.W.3d 20, 23 (Tenn. Ct. App. 2002). “The two most relevant

factors in determining the amount of alimony awarded are the economically disadvantaged spouse’s

need and the obligor spouse’s ability to pay.” Broadbent v. Broadbent, 211 S.W.3d 216, 222 (Tenn.

2006).

The primary problem with Mother’s argument on appeal regarding alimony is that

she does not set forth what her specific monthly financial obligations are and how much money she

needs to meet those obligations. Likewise, she does not set forth what Father’s monthly financial

obligations are and how much money he has left over each month after meeting those obligations.

Because this critical information is not discussed, Mother’s brief contains no corresponding citations

to the record indicating where this information can be found in the voluminous record on appeal.

See Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000)(“Courts have routinely held that the
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failure to make appropriate references to the record and to cite relevant authority in the argument

section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.”)(citations

omitted). Mother simply states that she now has monthly gross income of $4,000, plus an

unidentifiable amount of “additional income as gratuity.” We know that Father’s gross income was

substantially more at $12,371.50 per month. However, Father also was held responsible for much

more than half of the marital debt. Mother does not discuss how much money, if any, Father is left

with after paying the multiple mortgages on the house and the other debt he was ordered to pay,

including a substantial amount of credit card debt incurred by Mother during this short duration

marriage. In addition, Mother does not explain how her financial need and Father’s ability to pay

is affected by Father’s requirement that he pay her $30,000 by June 11, 2006, and $20,000 per year

thereafter until a total of $120,000 is paid, plus interest. In short, we are unable to ascertain whether

Mother actually has a need for additional alimony or whether Father has the ability to make such a

payment. 

Mother also claims the Trial Court erred when it failed to award her any attorney fees

over and above the $7,500 that Father was ordered to pay. An award of attorney fees in a divorce

case constitutes alimony in solido. See Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App.

1996). Because Mother has not set forth the information necessary for us to ascertain whether

additional alimony should have been ordered, we likewise will not disturb the Trial Court’s finding

on this particular point. 

The final two issues are evidentiary. Taken verbatim from Mother’s brief, these issue

are:

A. Whether it was error for the Court to admit into evidence the

report of Dr. Freeman, the Court’s own expert witness, as

well as her entire office file, when Dr. Freeman was present

to testify and did in fact testify at the trial of this matter.

B. Whether it was error for the Court to admit certain hearsay

statements of the minor child into evidence and use those

statements as grounds for further restriction of the Appellant’s

co-parenting time. 

In McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997), our

Supreme Court observed that “questions regarding the admissibility, qualifications, relevancy and

competency of expert testimony are left to the discretion of the trial court.” Id. at 263-64 (citations

omitted). Thus, a trial court’s evidentiary ruling may be reversed only “ifthe discretion is arbitrarily

exercised or abused.”

Mother argues that the above evidence should not have been admitted and its

improper admission resulted, in part, in her having reduced co-parenting time which had to be

supervised. Since we have remanded this case for further proceedings as to Mother’s co-parenting
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time and whether that co-parenting time should be unsupervised, these evidentiary issues are

rendered moot. We again emphasize that on remand Mother should be given standard co-parenting

time that is not supervised, unless she has engaged in conduct post-trial that rises to the level of

necessitating that her co-parenting time remain restricted and supervised. 

Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial

Court for further proceedings consistent with this Opinion and for collection of the costs below.

Costs on appeal are taxed to the Appellant, Heather L. Rusch-Jones, and her surety. 

_____________________________________

D. MICHAEL SWINEY, JUDGE