# FILED
December 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

GENEVIEVE M. DIX, ) ) Plaintiff/Counter-Defendant ) Shelby Circuit No. 142710 R.D. Appellant, ) ) v. ) ) JAMES A. CARSON, ) Appeal No. 02A01-9704-CV-00093 ) Defendant/Counter-Plaintiff ) Appellee. )

APPEAL FROM THE CIRCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE JOE C. MORRIS, CHANCELL OR

For the Plaintiff/Counter-Defendant For the Defendant/Counter-Plaintiff Appellant : Appellee : Geneviev e M. Dix Jerry F. Taylor Attorney Pr

o Se Deborah L. Pagan Memphis, Tennessee Arch B. Bo yd Memphis, Tennessee

AFFIRMED IN PART, REVERSED IN PART, MODIF

IED AND REMANDED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. DAVI D R. FAR

MER, J.OPINION

This is a divorce case. After a lengthy trial, the trial court, among other things, divided the marital estate, declined to award child support and awarded the parties joint custody of their minor child. We affirm in part, reverse in part, modify and remand. Following a

six-year courtship, Plaintiff/Appellant Genevieve M. Dix (“Wife”), an attorney, and Defendant/Ap pe llee James A. Carson (“Husband”), a mediator and construction contractor/con

sultant, married in

1986. The parties’ only child, a daughter, McKenzie Carson, was born in 1988. Wife filed for divorce in 1993. The litigation in this divor ce eventually es

calated into an un

duly mammoth proceeding. Husbandchanged attorne ys several times a

nd Wife, after retaining

counsel for a time

, eventually represented

herself. For

various reasons, the identity of the trial judge changed several times. The record is replete with allegations by both partie s of threats, adul tery, use of illeg

al narcotics, concealment

of assets, harassment, kidnapping, mental illness, physical violence and perjury. Prior to trial ther e were nu merous proceed ings on petitions and

motions, primarily f

iled by Wife, to compel discovery, for injunctive relief, accountings and fo r co ntempt of court. Husband filed a bankruptcy petition. Wife allegedly deposed Husband for over fifty hours. Three years after the petition for divorce was filed, the trial was held. The nine-day trial resulted in seventeen volumes of transcript and one hundred twenty-five exhibits. Husband’s testimony, includingcrossexa minati on by Wife, is approx imately five volume

s of transcript. W

ife’s testimony is approximately six

and one-half vol

umes of transcrip

t. At the time they married, Wife was 37 year s old and Husband wa

s 48 years old. Both

had been married

previously, and went into the marriage with assets. During the marriage, the parties ownedseveral parcels of real property. Hus band asserts that he owned substanti

al equity in most of these prior to the marriage. Husband contends that, prior to the marriage, he owned the par ties’ marital hom e at 398 4 Tutwiler in Memphis, Tennessee, and several rental properties in Shelby County, Tennessee: 5657 Raleigh-LaGrange Road, 2851 Shelby Street, and 5530 Summer Avenue. Husbandalso maintains that, prior to the marri age, he owned the real property located at 1701 Patricia Street in Key West, Florida. Prior to the marriage, Wife owned a home at 334 Buena Vista in Memphis. During the marriage the parties also owned t he pro perty at which Wife’s law office

was located, at 230 Adams Avenue in Memphis, as well as a partial interest in an apartment complex in Memphis. During the marria ge, Husband and W

ife executed de

eds so that all of the

real property2

would be owned by b

oth as tenants by the

entireties. After the parties’ daughter McKenzie was born in 1988, both Husband and Wife were involved in chi ld-rear ing, although the parties disagree as to which of them was the primary caretaker. They agreed to enroll McKenzie in a private, all-girls school in Memphi s, St. Mary’s Episcopal School. I

t is undisputed that Mc

Kenzie has done

well at St. Mary’s. A fterthe parties separated, Wife filed for divorce and sought sole custody of McKenzie. During the pendency of the litigation, McKenzie has alternated weeks with each parent. The parties entered into a consent orde

r for Husband to pa

y child support t o Wife during the pendency of the litigation. Husband paid no ch ildsupport to Wife, but argued that his arrearage was offset by other monies spent on McKenzie. In the divorce proc

eedings, both par

ties sought sole

custody of

McKenzie. The trial court appointed a guardian ad litem to report on the issue of custody. The guardian ad litem reviewed

numerous documents, including psychological evaluations of Husband and Wife, and interviewed Husband, Wife, McKenzie’s teacher and other witnesses. Based on her investigation, the guardian ad litem recommende

d that sole custody b

e awarded to Wif

e, but retain the same allocation of parenting time between the parents, that is, alterna ting wee ks with each parent. The guardian ad litem also recomme

nded that McKenz

ie continue atten

ding St. Mary’s Episc

opal School. As noted above, the t

rial in this cause w

as unduly lengthy, l

asting nine days. Mo

st o f the evidence consisted o f Wife’s testimony and Wife ’s examination of Husband and other

witnesses. On the real property at issue, Wife testified that she had contributed

substantially to the properties in which Husband had owned an interest prior to the marriage. She contended that mutual affection motivated the deeds conveying Husband’s inter est in the real property to Husband and Wife as tenants by the entireties. Wife asserted that Husband had engaged in

a pattern of dissip

ating assets and hiding income. She argued that Husband owed rent to the “marital estate” for his use of jointly ownedproperty after the parties’ separation. She maintained that Husband had committed adultery before and after the parties’ separation and was at fault for the demise of the mar riage. Wife also sought sole custody of the parties’ daughter McKenzie. She asserted that she had been McKenzie’s primary caretaker, both before and afte r the parties’ separation. Wife testified about numerous incidents in which Husband had been verbally abusive to Wifeand even physica lly threat ening. She said that she acquiesced in the arrangement of McKenzie spending alternat in g3

weeks with each parent only because Husband had “kidnapped” McK enzie from

school without Wife’s knowledge and not told Wife where he and McKenzie were

, or even that she

was with him. She said she agreed to the arrangement only to prevent further stress to McKenzie. Wife test ified that Husband frequently left town unexpectedly during times in which McKenzie

was scheduled to be with him. Wife said that this resulted in Wife b

eing forced to

quickly change her

plans in order to care for McKenzie and created uncertainty and insecurity in the child. Wife testified that Husband refused to talk with her about any topic, including McKenzie, and had

even installed call blocking on his telephone to block Wife’s telephone calls for a substantial period of time. Wife accused Husband of using illegal drugs and consorting with a convicted felon and drug user. Wife also argued that M cK enzie should be kept in the same private school, St. Mary’s Episcopal School, and that Hu sband should be required to pay his fair share of the tuition. She contended, basedon her

evidence, that Husband was hiding income and dissipating assets, and that Husbandshould be required to pay her child support in the future, as well as the arrearage in child support from the consent pendente lite order. In his testimony, Husband maintained that Wife is mentally ill. In support of this assertion, he cited Wife’s excessive behavior representing herself in the divorce procee dings, including

numerous petitions and motions, excessive discovery, harassmen t of witnesses, and deposing Husbandfor over fifty hours. He also contended that Wife had stalked him and had harassed th e court-appointed

certified public accountant. He asserted that Wife’s repeated harassing telephone calls to Husband’s home forced him to get call blocking to block calls from Wife. He maintained that McKenzie could r

each him by using his

pager. He calc

ulated that he had

cared for McKe

nzie at least sixty-one percent of the time since the parties separated. Husband testified that he had been

an involved parent since McKenzie was born. He testifie d that he had take

n McKenzie

to numerous activities and classes, and that he enrolled her at St. Mary’s E

piscopal School as

an infant, several years before sh

e was to start scho

ol.4

On the property divis

ion, Husband testif

ied that bo th parties came in to the marriage w

ith property. He testified that, prior to the marriage, Wife owned the house on Buena Vista, her savings and her pension. Husband stated that, prior to the marriage, he owned the marital home on Tutwiler, the house in Key West, Florida, and the rental property in Shelby County on Shelby Street, Summer Avenue and Raleigh-LaGrange Road. Husband testified that the properties in his name were placed in both parties’ names because Wife fraudu lently advised him to do so, purportedly to protect the property from creditors. Heasserted that Wife’s income from her law practice had increased greatly during the marriage, to over $100,000per year, while his income has decreased to less than $25,000 per year because of the divorce litigation. Husband acknowledged not having paid to Wife the child support set forth in the consent pendente lite order, but maintained that this was offset by his other expenditures for McKenzie, s uch as etiquette c

lasses, swimming les sons, piano lessons , tutors, entertainment and clothing. After the tri al, the trial court declared the parties divorced pursuant to Tennessee Code Annotated § 36-4-129, without attributing fault to either party. The trial court f ound both parents to be fit, and found that the custody arrangement pending trial had been “successful.” Both parties

were awarded joint custody with Wife being awarded physical cu stody. The trial court awarded Husbandthe “same liberal visitation as he has had in the past three years,” holding that each party should continue to keep McKenzie on alt ernating weeks.

The trial court di

d not hold either pa

rty responsible

for child support a

nd declined to req

uire Husband to pa

y expenses f

or Mc Kenzie’s tuition at a private scho

ol. The trial c

ourt noted th at Wife had paid for health insurance for McKenzie, and ordered Hus band to pay for ha

lf the premium and half of any medical expenses not covered by insurance. The t

rial court also

found that any balance Husband owed for child support was offset by his expenditures on McKenzie. The trial court also divided the marital estate. The trial court divided the real property owned by the parties. Noting that Husband had occupied the marital home

on Tutwiler for many years prior to the parties’ marriage, the trial court awarded t

he marital home

to Husband. The tr

ial court also awarded Husband the Key West property, although it found that “both parties contributed t o improvements,

maintenance and upkeep” of the Florida property. The proceeds from the sale of the property on Adams Avenue were awarded to Wife , and Wife was awarded the home at 266 Hawthorne in which she lived at the time of trial. The remaining properties were ordered sold and5

the proceeds divided equally between the parties. The personal property was divided by awarding it to the party in possession of the property at the time of the final decree. The tri a l court ordered that each party p ay hi s or her own attorney’s fees and held that costs should be divided equally. From this decree,

Wife now appeal

s. On appeal Wife argue s that the trial court should have awarded her sole custody of McKenzie. Wife contends that the trial court should have required Husband to pay child sup p ort, botharrearages and in the future, and maintain a life insurance policy for the benefit of the c hild. Wife also asserts that

Husband should be r

equired to contribute to the c

ost of McKenzie’ s private school tuition and e

xpenses. In addition, Wife contends that the trial court should have granted the divorce to her on the grounds of

adultery and/or inappropriate marital conduct. Wife challenges the trial court’s division of the marital estate and asserts that the trial court failed to render and consider an accounting of the

mar ital prop erty. Finally, Wife seeks her attorney’s fees and court costs at the trial level and on appeal. Our

review of this

case is de novo upon the record w ith a presumption of

correctness

of the findings of fact by the trial court. See Rule 13(d) of the Tennessee Ru

les of Appellate

Procedure. No p resumption of correctness attaches to the trial court’s conclusions of law. See Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). On appeal, Wife asserts that the trial court

erred by declaring the parties divorced pursuant to Tennessee Code Annotated § 36-4-129. She argues that the court shou ld have award ed the divorce to her on the grounds of adultery or inappropriate marital conduct. The trial court noted that Husbandadmitted committing a dultery “beginnin

g some three years after the separation,” but found insufficient

proof of prior ac

ts of infidelity by Husband. Wife maintains that there is no evidence in the record of fault on behalf of Wife and that the preponderance of the e vidence does not

support the trial court’s determinati on that Wife has failed to prove other acts of Husband’s infidelity. Husbandpoints to his testimony of numerous incidents of inappropriate marital conduct by Wife, including testimony that Wife threatened Husb

and, and engage

d in inappropriate

conduct towards third parties such

as tenants and the

parties’ accou

ntant. The trial court’s ass

essment of the evi

dence on fault

necessarily invo

lves a determination of the parties’ credibility:1 Wife purchased the home with se

parate assets in contemplation of divorce and the trial court does not appear to consider this marital property. 6 In [a] nonjury case, the trial judge as the trier

of fact ha[s] th

e opportunity to o bserve the manner and demeanor of all of the witnesses as they testif[y ] from th e witness stand. The weight, faith, and credi

t to be given the witnesses’ testimony lies in the first

instance with the t

rier of fact, a

nd the credibility

accorded will be given great weight by th

e appellate cour

t. Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). Therecord includes evidence of inappropriate

marital conduct b

y both parties. Und

er these circum

stances, the trial court did not err in declaring the parties divorced pursuant to Tennessee Code Annotated § 36-4-129. Wife cha llenges the trial court’s division of the marital estate. The trial court awarde d Husbandthe marital hom e, as well as the real estate in Key West, Florida. The net equity of the marit al home was $92, 500 and the net equity of the Key West property was $252,000. The trial court awarded the pro

ceeds of the sale

of Wife’s law office on Adams Avenue to Wife. Wife was also awarded a home at 266 Hawthorne that she acquired during the marriage and in

which she lived at the time of trial. 1 Although, the trial court did not make a findi

ng on the net equity

of property awarded to

Wife, her undisputed evidence indicates that the Adams Avenue property was sold for $128,662.67. Th ree other parcels of real estate located on Summer Avenue, Raleigh La-Grange Road, and Shelby Street, with a combined net equity of approximately $322,400, were sold and the equityequally divided be tween the partie

s. The trial court also held that “[t]he parties are awarded the personal property which they nowpossess, including a utomobiles, guns and jewelry, and bank accounts, stocks, IRA’s, or other holdings.” Wife asserts that th

e trial court

ultimately awarded her 14.08% of the estate, Husband 25.47% of the estate, and omitted consideration of 60.45% of the estate. Wife maintains that the trial court erred in designating the Adams Avenue property as marital property. She argues that the trial court’s division of the marital estate is inequitable particularly in light of her contri bution to property allocated to Husband. For instance, Wife states that she sold her previous home before the marriage and that the proc eed s helped to pay the mortgage on the Key West property that Husband had purchased before the marriage. In addition, Wife argues that thetrial court failed to allocate numerous other items of tangible and intangible personal property. Wife contends that the de facto result of the trial court’s failure to make a determination regardingthis property benefits Husband. She further claims that Husband7

owes her rent on the real property on Summer Avenue occupied by Husband’s business during the pendency of the divorce. Wife st ates that her busi

ness paid the marital estate rent for its use of the Adams Avenue property, but that Husband’s corporation failed to pay the estate for its use of the Summer Avenue property. Wife also asserts that she is entitled to the reasonable rental value of the marital home because she was “constructively evicted” by Husband due to his “conduct, thre ats, assaults and his refusal to leave.” The tri al c our t’s pro pert y d ivision is r eviewed de novo with a presumption that the trial court’s factual findings are correct. See Watters v. Watte rs , 959 S.W.2d 585, 588 (Tenn. App. 19 97); Tenn. R. App. P. 13(d ). An appellate c

ourt may alte

r the trial court’ s division of proper ty only if the trial court misapplies the law or if the evidence preponderat es against th

e trial court’s factual findings. See Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. App. 1994). Under Tennessee Code Annotated § 36-4-121, the court is directed to consider many f actors in the division of marital property, including the length of the marriage , the age, employability, and earning capacity of

the parties, and the contributions of each party to the marriage

. See Tenn. Code Ann. § 36-4-121 (1996). In Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. App. 1990), this Court stated that the “ownership of the marital estate should be presumed to be equa l u ntil prove n othe rwise .” In Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. App. 1991), the Court held: [M]arital property sh

ould be equitably

divided without reg

ard to fault. An e

quitable division, however, is not necessarily an equal one. Tr ial courts are afforded wide dis cret ion in d ivi din g the int eres ts o f th e par tie s in joi ntl y-ow ned pro pert y. Id. at 449. We first examine the

trial court’ s allocatio n of the real property in the marital estate. The trial court allocated the Key West property and the marital home on Tutwiler to Husband and allocated the Adams Avenue property to Wife. The proceeds from the sale of the properties on Raleigh La-Grange, Summer Avenue, and Shelby Street were to bedivided equally. This resulted in an effective di

stribution of 63.3% of the marital re al property to Husband and 36.7% to Wife. Wife ar g ues that this distrib ution is inequitable

, particularly sin

ce the Buena Vista

property, sold during the marr iage, was owned separate ly by Wife and sinc

e she invested the

sale proceeds in property allocated to Husband. Wife al

so states that she ma

de other substanti

al contributions to property a warded to

Husband. Finally, W

ife notes that Husb

and signed the dee

d to the Adams8

property over to her after the parties separated in an effort to save it from forec losure . Wife then refinanced the property and paid the mortgage until she sold the property. At the time the parties married, Wife sold her home on Buena Vi sta an d moved into the marital home on Tutwiler. The marital home on Tutwiler, a s well as the prope

rty in Key West,

on Raleigh La-Grange Road, Summer Avenue, and

Shelby Street, wer

e all owned by Husb

and prior to the marriage. Evidence supports the trial court’s finding that “[t]he Buena Vista sale netted $97,000 to Ms. Dix, which was i

nvested in the Key

West property.”

Followin g t he marriage, the parties chang ed the deeds to all the property so that th

ey jointly owned the

property as te

nants by th e entirety. Wife,

an attorney, pro

posed the idea. Th

e trial court stat

ed that: [t]he reason for these

transactions is no

t completely

clear. Ms. Dix co

ntends it was done for love and affection as a consideration, and Mr. Carson contends it was done to cloud the titles, d

ue to possible exposure in a pending la wsuit. Wife testified th

at she made furth

er contributions to

the properties, f

inancial contrib

utions as well

as other contributions such as repair, improvements, upkeep, and caring for tena nts. During the marriage, the parties also purchased the Adams Avenue property for Wife’s law practice. The trial court found that “[b]ot

h parties contrib

uted to the money an

d improvements tha

t went to” this property. The evidence prepo

nderates in favo

r of the trial cour

t’ s distri bution of the marital real p roperty. The evidence supports the trial court’s finding that Husband made subs tantia l contributions to the Adams Avenue pro perty, and also su

pports the trial court’s

designation of this realty as marital proper

ty. The trial cour

t’s equitable

division of the rea

l property is consistent with the factors set forth i n Te nnessee Code Annotated § 36-4-121(c). The factors favoring the trial court’s allocation include the relatively short duration of the marriage, the fact that Wif e is younger and like ly has the h igher earning capacity and has greater ability to acquire capital assets in the future, and the fact that

most of the real pr

operty was owned by Husband before the marriage. Id.9

In addition, the trial court noted that Wife owned more valuable separate property. See id. § 36-4-121(c)(6). The trial court stated: Ms. Dix testified that she had substantial assets before the marriage and presently has substantial holdings, including IRA’s, and a luc r ative law practice. On the other hand, Mr. Carson owned as his separate prope

rty all of the rea

l estate involved in

this litigation, except for Buena Vista, before the parties’ marriage. He has no pension or retirement, and now owns nothing but the property awarded in this case. It is unclear whether the trial court was influenced by Wife’s recommendation that Husband convert the deeds of his property so that they shared an ow nership interest as tenants by the entirety. Regardless,

under all of these

circumstances,

the trial court acted wit

hin its “wide discr

etion” in allocating the real property in the marital estate. Barnhill , 826 S.W.2d at 449. The decision of the trial court on this issue is affirmed. Wife alleges that a substantial portion of the personal property in the estate was not addressed by the trial court. However, the trial court expressly stated that “[t]he parties are a warded the personal pro perty which they now possess, including automobiles, guns and jewelry, and bank accounts, stocks, IRA’s, or other holdings.” This holding appears to include the following personal property tha t Wife c laims has not been a ddressed in Wife ’s Rule 15 listing of th e martial assets: tools, equipment, various furnishings and household items, a car, a boat and a trailer. All of t

hese items are located

at the Key West proper

ty that was award

ed to Husband. The

items are in his possession and were covered by the trial court’s holding above. After reviewing the record, we cannot conclude that the

evidence prepo

nderates agains

t the tr ial court’s decision. Therefore, the decision of the trial court is affirmed as to these items of personal property. Wife also asserts that the trial court failed to addres s a number of intan gible marital asse

ts. Restraining orders in the record prohibited Husband “from disposing of, causing harm to, secreting, damaging or destroying any item of marital property . . .” and “from disposing of the proceeds from the sale of the parties’ Rolls Royce automobile.” Furthermore, Husband was ordered to deposit any rental income into an acc ount managed by an

agreed-upon ce

rtified publi

c accounta

nt. Bank accounts containing marital funds would be included in the trial court’s restraining orders. The record indicates that Husband may haveviolated the provisions in the restraining orders throughout the pendency of the divorce. The trial court, however, found that “[a]n y money that was spe

nt in violation of the various Res training Orders w

as to preservethe marital assets of the parties and was

accoun ted for, except for the balance of the attorney’s fees awarded to the Guardia n Ad Litem .”10

Therefore, the use of marital funds by Husband in violation of the above restraining orde rs would be covered by the trial court ’s ruling that the funds were used to preserve the marital estate. The follow ing intangible assets i n Wife’s Rule 15 lis

ting of marital pro

perty would be inc

luded in the trial court’s finding: the Rolls Royce account, rental income from the parties’ rental properties, loans from marital funds for Hus band’s construction business and taxes on that business, Husband’s allegeddiversion of joint marital rental funds and Wife’s marital wages, loans to Husband from the parties’ rental income account, condemnation proceeds for the Summer Avenue property, insurance checks received for dam age to Tutwiler prope rty, various investments made by Husband with marital funds, the purchase of a car with marital funds, and a loan to Husband f

rom marital funds t

o bring the note on the Adams property current. Upon review of the record, we canno t conc lude that the evidence preponderates against the trial court’s holding. Consequently, the decision of the trial court is affirmed as to t

hese items. Wife asserts that the trial court also failed to make a disposition of over $12,000 in a Morgan Keeganaccount, over $30,000 in the Napolean Enterprises acc ount, and $200,000 that Husband loanedto third parties at twenty-five percent interest. Husband admitted that in 1986, the year the parties married, the Napolean Enterprises account contained over $30,000 from his construction company. He claims that he subsequently lost this money. Husband also maintains that the money in the Morgan Keegan account was money earned from his construction company. The reco r d is unclear whether the trial court found these funds to be marital or separate property. In addition, the distribution of these items is not covered by the trial court’s findings discussed above. We remand these issues to the trial court to determine whether the funds in these accounts and the cash loaned out are marital property or separate property and distribute them accordingly. Wife also claims that Husband owes her over $100,000 for 62 3 hours of legal work she performed

for his business dur

ing their marriage and over $14,000 for a loan to Husband from her separate funds used to pay off Husband’s car note. Wife stated that Husband agreed to pay her for these legal fees and r

eimburse her for

the money she used

to pay off his car

, although she agr

eed to defer payment. These two items were not covered by the trial court’s findings discussed above.11

Because the issues involve credibi lity of witnesses, we must remand for the trial court to make a determination of whether Husband owes Wife these amounts. Wife also seeks to

have Husband reimburse her for expenses on the Adams Avenue property that exceeded the rental income. The trial court’s order does not address this issue. However, the record contains no evide

nce that would supp

ort an award to W

ife of these e xpenses. Therefore, Wife’s petition for these expenses is denied. Wife also asserted

on appeal that Husband owed rent to the marital estate for his use of the Summer Avenue property for his business and that Husband owes her rent due to her

“constructive eviction” from the marital h ome. The trial cou

rt specifically d

enied these

requests in its findings by denying Wife’s petition to have Hu sband an d his corporation p ay rent. The tria

l court also considered

Husband’s claims. For example, thetri al court ruled tha t Husband was not e

ntitled to

recover his claim for $102,000 for reimbursement for rep airs an d management fees for the real property. After reviewing the record in this case, we affirm the trial court on these issues. Wife also contends that

the trial court er

red by “failing to

equitably consider and

equitably render an accounting in compliance” with a March 1994 Consent Order, thus resulting in an ina bility to “properly adjust the equities in the marital estate.” The order entered on March

31, 1994, states: the parties shall be o

rdered to comple

te an accounting

with regard to

the issues raised in the Petition [filed by Wife], specifically an accounting of re

nts and profits due on certain real pr

operty jointly owne

d by the parties. I n the order, the parties agreed that the accounting should be conducted by Cer tified Publi c Accountant

(C.P.A.) Steve Wa

lls (“Walls”). Wife notes that although she completed her accounting pursuant to the order, Husband failed to comply with the order. As a result, Wife argues that the trial

c o urt’s distribution of the marital estate was skewed. Husband responds that he provided all the documentation that he could under the circum

stances. Walls te

stified that both pa

rties “supplied a

ll the information [Walls] asked for.” After full review of the record, we find that there was sufficient evidence by which the trial court could divide the marital estate. D uri ng the course of th e nine-day trial

, there was ample testim o ny for the trial cour t to render its dec

ision. The trial co

urt acted within its

discretion in making its decision without a formal accounting by Husband. The decision of thetrial is affirmed on this issue. Wife also appeals the trial court’s decision regarding custody of McKen zie, her schooling12

and past and future child support. The trial court awarded the parties “joint custody of McKenzie, withMs. Dix being awar ded physical custo

dy.” Ho wever, the trial

court ordered th

at McKenzie continue spending alterna ting weeks with ea

ch parent, findin

g that this arrangeme

nt had proven “satisfactory in the development of the child.” The trial court refused to order Husband to pay for any portion of McKenzie’s tuition at St. Mary’s Episcopal School, anddeclined to order payment of child support. It found that Husband’s arrearages in child support were offset by his payment of other items for Mc

Kenzie, such as e

tiquette classes a

nd piano lessons. Husbandargues that the trial court did not err in awarding the parties joint custody of McKenzie, contending that acrimony between the parties does not per se require reversal of an award of jointcustody. He notes that the trial court found that the arrangement of alternating weeks had proven “ satisfactory in the development of the child” and that the guardian ad litem, whil e recommending Wife have sole custody, also recommended continuing alternating weeks with each par ent. Husband also contends that the trial court did not err in declining to require him to pay a portion of the St. Mary’s tu ition or to pay child

support, cla

iming t hat he now earns less than $30,000 per year, consi

derably less than

Wife’s income

from her law practice. Husband also argues that the tr ial court prop erly found that his child support arrearages were offset by his other expenditures for McKenzie. We consider first the issue of custody. Wife argues that the trial court erred by awa rd ing joint custody, and maintai ns that the arrangement of alternating weeks has not been in the child’s best interest. Wife insists that, in fact, McKenzie has not been living with each parent on alternating weeks. Instead, Wife a sserts t hat she has spent more time in Wife’s care, because Husband often has been out of town, sometimes for exte nded periods of tim

e. On these occa

sions, Wife says that Husbandwould simply tell Wife that she was responsible for taking care of the child d uring his absence. Wife alleges that many times Husband leaves town without telling Wife where he is going and where he can be

reached. She co

ntends that her ef

forts to contact H

usband concerni

ng their

c hild have be en rebuffed and that Husband refuses to speak with her about any topic, including McKenzie. It is undisputed that Husband has for significant periods blocked his telephone line from receiving any calls from Wife’s residence. Wife asserts that she is the more fit parent and should

be awarded sole custody of the child. She maintains that she was McKenzie’s primary caretaker during the parties’ marriage. Wife alleges13

that Husband has liedto McKenzie, has used illegal drugs, has a propensity for violence, and has had

a tenant wh o is a drug user an d convicted perju

rer. Wife notes

that the guardian

ad lite m recommended

that she be awarded sole custody, and asks this Court to do so, with liberal visitation for Husband. Husband asks this Court to affirm the trial court’s holding on custody and the allocation of parenting time. He argues that both parents have been involved in McKenzie’s care and that joint custody is therefore appropriate, despite the parents’ inability to communicate. He maintains that the arrangement of

alternating wee

ks has been in McKe

nzie’s best

interest, noting that the guardian ad litem recommended continuing this allocation of parenting time. Husband does not in

his testimony dispute Wife’s allegation that he has on occa sion left town abruptly, sometimes for extended periods, leaving McKenzie in Wife’s care. Nevertheless, he maintains that he has cared for McKenzie approximately sixt y per cent of

the time since the parties’ separation. He does not dispute Wife’s contention that he refuses to communicate with her on any issue, including McKenzie, and installed call blocking to block telephone calls from Wife’s residence for a substantial period of time. How ever, he maintai

ns that this is a result

of Wife’s harassing and excessive behavior, and argues that Wife is mentally ill. In child custody cases, of

course, the child’s best interest is the primary consideration. See Tenn. Code Ann. § 36-6-1 06 (1996); Bah v. Bah , 668 S.W. 2d 66 3, 665 (Tenn. App. 1983). The Courthas “the widest discr etion” to fashion “

a custody arran

gement that is in the

best interest of the child.” Tenn. Code. Ann. § 36-6-101(a)(2). By statute, there is “nei ther a preferen ce nor a presumption for or against joint legal custody, joint physical custody or sol e cus tody . . . .” Id. Nevertheless,

the practical pr

oblems of joint custody have bee n repeatedly ac

knowledged by this Court, particularly “where there is hostility and ill will between the parents.” Jones v. Jones , No. 01-A-01-9601-CV00038, 1996 WL 512030, *4 (Tenn. App. Sep t. 11, 1996); see also Winchester

v. Winchester , No. 02A01-9604-CH-00092, 1997 WL 61508, *2 (Tenn. App. Feb. 14, 1997); Malone v. Malone , 842 S.W.2d 621, 623 (Tenn. App. 1992) ; Dodd v. Dodd , 737 S.W.2d 286, 289- 90 (Tenn. App. 1987). Joint custody arrangements “depend for thei r succe ss on a high degree of cooperation between the par ents, so it is perha

ps not surprising tha

t they should frequ

entl y fai l.” Jones , 1996 WL 512030, a t *5; see also Winchester , 1997 WL 61502, at *3. The record in this ca

se is replete with

evidence of hostility and animosity between the parties.14

This has resulted in a t

otal absence of c

ommunication rega

rding McKenzie’ s well-being. Whil e both parties are loving and involved parents, the i r enmity has created in essence a “parallel” parenting

arra ngement, in which each parent acts autonomously, with no joint cooperation, decisions , o r planning for McKenzie’ s future. This is an unhealthy arran

gement for the ch

ild, difficult with respect to d ay-to-day issues

such as homework a

ssignments and unwo

rkable in the fac

e of majo r decisions and plans for the child’s future. Husband rightly notes that, o n rare occasion

s, this Court has affirmed an award of joint custody in a situation in which hostility existed be tween the paren

ts. See, e.g., DeVault v

. DeVault , 1996 Tenn. App. LEXIS 536 (Tenn. App. August 28, 1996). In DeVault , th e father bec ame involved with a “paramour ” and moved out of t

he marital home. See id. at 1. The trial court awarded the parties joint custody, with primary physical custody with the mother. See id. at *2. On appeal, the mothe r opposed the trial court’s order of joint custody, arguing that joint custody was inappropriate

in a case in

which the parties “cannot get along.” See id. The appellate court declined to reverse theorder of joint custody, noting that the mother, who sought sole custody, was the source of most of the pr o blems, because of her “feelings of being spurned by” the father. See id. at 3-4. The Court also fel

t it likely that:

an award of sole cu

stody to [the mother

] would restrict [

the father’s] r

ole in his children’s lives . Such a restriction would be highly disruptive to the children because [the father] has bee

n extraordinari

ly involved in his sons ’ lives in the past. Id. at 4. Thus, the Court

found that the mother should not be permitted to, by her behavior, make joint custody unworkable and then be awarded sole custody. This case is in some ways the converse of DeVault . While both partie s have contribute

d to the acrimony between them, Husband’s conduc t most directly aff

ects the custody a

rrangement. While Husband maintains

Wife’s behavior

forced him to

do s o, it is undisputed that Husband adamantly

refuses to commun

icate with Wife,

regarding McKe

nzie or any other

topic. It is undisputed that Husband put ca ll blocking on his telephone to block telephone calls from Wife. It is undisputed that Hus

band has repeat

edly left town abruptly

and simply expecte

d Wife to quickly make arrangements to

care for McKenz ie. Thus, unlike DeVault , the party most responsible for making joint custody unwor kable seeks to have it affirmed by this Court. It is clear in this case that joint custody is not feasible, and we therefore vacate the trial court’s order on this issue. W e must th erefore determine the party to whom sole custody should be granted. A15

comparative fitness analysis is used to determine which parent should be awarded custody. Ruyle

v. Ruyle , 928 S.W.2d 439, 442 (Tenn. App. 1996) . At the trial leve l, both parties soug

ht sole custody. On appeal, Wife seeks sole

custody and Husband seeks to have the award of joint custody affirmed. The tr

ial court specifi

cally found both pa

rties to be fit par

ents. In this case, as in many cases, both parties are loving and involved parents with significant drawbacks. Wife testified extensively re garding Husband’s o utbursts and volatile temper, his refusal to communicate with h

er, and that he ha

d repeatedly lef

t town with

no notice and without informing Wife where he could be contacted. Husband does not dispute these c laims, but maintains

adamantly that Wife’s harassment and excessive behavior forced such a response. Husband also testified extensively regarding Wife’s behavior, accusing her of mental illness, harassmen t , threats to him and to third parties. Af

ter Husband had c

all blocking install

ed on his telephone to block Wife’s ca lls, he asserts tha

t she called his pa

ger over eighty ti

mes in a single

day. Wife disputes these accounts, asserting that she has behaved reasonably throughout the litigation. However, this is belied by the record in this cause. Review of the record makes it clear that Wife, in representing herse lf, engaged in ex cessive and, at ti

mes, oppressive be

havior and is prima

rily responsible

for expanding this

litigation into seve

nteen volumes of tr

anscript as well a

s innumerable exhibits and pleadings. This fact must be taken into account as well. On the whole, while both parties have significant virtues and vices, we must conclude that McKenzie’s best

interest would

be served by awarding custody to Wife rather than Husband. To be certain, Wife’s behavior

makes the relatio

nship between Hus

band and Wife dif

ficult. However

, it does not appear to directly affect her ability to par ent McKenzie o r to cooperate with Husband regarding McKenzie. On the other hand, Husband’s refusal to commun icate with Wife, his vola

tile outbursts, and his sudden decisions to leave town and assume Wife will care fo r Mc Kenzie in his absence all directly aff

ect his parenting

and his ability to work cooperatively with Wiferegarding16

McKenzie

and keep both

parents involved. Consequently, we find that sole c ustody of McKenzi

e should be awarded to Wife. We must now address the allocationof parenting time between the parties. Wife argues that Husband does not communica te with her regar

ding McKenzie’s

school assignments

o r extracurricular

activities, and that Hus band regularly left town suddenly without making arrangements

in advan ce for

Wife to care for McKenzie. Wife testified that Husband’s behavior makes it difficult for her

to monitor continuing homework assignments and plan for school activities at wh ich parents are

to be available a

nd that it causes Mc

Kenzie to be inse

cure and stresse

d. Sh e also disputes Husband’s fitness as a parent, alleging that he has a propensity for violence, uses illegal drugs and consorts with

felons and other undesirable persons. The trial court f ound both parents t

o be fit, and found that

the arrangemen

t of alternating w

eeks wit h each paren t had “proven to be satisfactory in the development of the child.” The guardian ad litem recommended Wife be awarded solecustody, but also recommended McKenzie continue spending alternate weeks with each parent. It is undisputed that Husband has refused to communicate with Wife regarding McKenzie’s schoolwork

or any other topic , and that this has c reated diffic

ulties . It is also undisputed that Husbandhas often taken unexpected trips out of town, causing McKenzie to be insecure and leaving Wife to care for her. However, it is also undisputed th

at Husband has be

en a loving paren

t and quite involved in McKenzie’s activities. The record indicates that

the parties have been alternating weeks, with “changeover day” on Monday afternoons afte

r school. On balan

ce, it appears ne

cessary to modify

this arrangemen

t durin g the school year to permit Wife to better monitor McKenzie’sschoolwork and cope with Husband’s

r ef usal to communicate wit

h her regarding

McKenzie’s ac

tivities. Visitation i

s modified so that, during the school year, Husband’s visitation on alternate weeks shall begin on Wednesday afternoons after school and end upon bringing McKenzie to school the following Monday morning. In all other respects the visitation arrangement shall remain as ordere d by the trial court, in particular regarding holidays, vacations and maintaining the arrangement of alternating weeks with each parent dur

ing the summer months

. On appeal, Wife also seeks child support. The trial court made n

o specific findings regarding the parties’ income level, but in light of the order of joint custody and alternating weeks, ordered no paymen t of child support. The issue of child support must be remanded in light of this Court’s17

modification of the trial court’s order on custody and visitation. Wife also contends that the trial court erred by failing to require Husband to pay a portion of McKenzie’s priv

ate school tuition a

nd expenses at St.

Mary’s Episcopa

l School. At the time of trial, tuition for the school was $7,245 per year. Although the trial court found that McKenzie “has attended St. Mary’s Episcopal School since she was old enough to enrol l,” it “decline[d] to order that the child attend St.

Mary’s.” Wife a

rgues that McKen

zie is doing well

at St. Mary’s andthat it is in her best inter

est to continue at St. Mary’s in order to retain continuity with friends and teachers. Husband has objected to McKenzie’s continued enrollment in the pr

ivate school,

claiming

an inability to pay and indicating some preference that she attend a co-educational school. Husband asserts that McKenzie should attend Grahamwood School, a public school with excellent credentials locatedclose to Husband’s residence. Wife notes that Husband enrolled McKenzie at St. Mary’s and

never voiced his disapproval of the school until after the parties separated and he was asked to pay

a portion of

the tuition. McKenzie has continued attending St. Mary’s, with Wife paying all of the tuition. The evidence in the record indicates that McKenzie has been excelling at St. Mary’s, where she is accustomed

to small, all-girl c

lassrooms. The gua

rdian ad litem rec

ommended as follow

s: [I]t is in McKenzie’s best interest that she continue at St. Mary’s Episcopal School as long as possible, it being in McKenzie’s best interest that she continue in a familiar, stable setting with familiar friends and teachers with the extremely high quality and diversity

of the education that she is now getting, which will provide her with a strong found

ation for her fut

ure development. Although Husband now claims a preference that McKenzie attend a public, co-educational school, it is undisputed that,

well prior to their

separation, both p

arties believed

it was in McKenzie ’s best interest to at tend St. Mary’s. In deed, Husband not

es that he enrolle

d McKenzie at St. M

ary’s in 199 2, years before she would begin attending. I

t is undisputed that H

usband has acquie

sced in McKenzie

continuing to atten

d St. Mary’s, so lo

ng as Wife pa ys the tuition. Unde r these circumstances,

the e vid ence preponderates against the trial court’s holding that Husband not be required to contribute toward the St. Mary’s tuition and expenses. We reverse the decision of the trial court o n this issue and remand the issue to the trial court, to determine the portion o f McKenzie’s St. Mary’s tuition and s ch ool expenses to be paid by Husband, along with the trial court’s consider

ation of the overa

ll issue of child supp

ort.18

Wife contends on appea

l that she is entitled

to child support a

rr earages pursuant to the consent pendente lite ord

er entered on Fe

b ruary 2, 1994. The order states that Wife shall be reimbursed“for one half of all health insurance, medical expenses, day care . . . expenses , school activity and other school r

elated expense

s; clothing expense

s; piano lessons,

etc. for the minor

child of the parties.” Theorder also states that Husband may “offset against any such amounts for onehalf of such expenses that he incurs and documents for the minor child.”At trial, Wife maintained that Husband owed her

$14,502.66 for th

ese e xpenses. The trial court found that any arrearages owed by Husband were “set off by his expenditures on the child.” Wife argu es that the trial court erred in setting off these amounts. Wife contends tha t Tennessee Code Anno tated § 3 6-5-101(a)(5) bars Husband from setting off his child support obl igation since he filed no petition for modification or relief from the 1994 orde r. Wife als o maintains that Husband has not proven any offsets in accordance with the ord er. She notes that Husbandadm itted tha t he used marital funds for some of the items claimed as expenditures for McKenzie, and th

at he did not provide

documentation of h

is claimed offset

ting expenses. Husband argues that during the pend ency of the divorce, he kept McKenzie over s

ixty percent of the time and that he should be entitled to offset his expenditures on her behalf. Husband testified that his expenditur es for McKenzie

in cl uded etiquette classes, swimming lessons, piano lessons, tutors, entertainment, clothing, andother expenditures. Husband maintains that Tennessee Code Annotated § 36-5-101(a)(5) does not require a petition to be filed if the offsetting expenses are for necessities. While a child support obligation cannot be modified retroactively, a petition for relief pursuant to § 36-5-101(a)(5 ) need not be file d in order to offse

t expenditures ag

ainst child

support arrearages. See, e.g., Benson v. B enso n , No. 01-A-01-9601-CV00043, 1996 WL 284731, at *2 (Tenn. App. May 31, 1996); Nethert on v. Netherton , No . 01-A-01-9208-PB00323, 1993 WL 49556, at *2 (Tenn. App. Feb . 26, 1993). Since e xecutio n of the 199 4 order, the rec ord contains only limited documentation of Husband’s child-related expenditures. Husband has submitted a list of his expenses but has documentation of only a few. Although the consent order notes that Husband may offset expenses he incu

rs “and document

s,” the trial cour

t was within its

discretion to

find that the expenses were actually incurred even in the absence of do cumentatio n. Husband asserted that he paid many of the expenses specified by the consent order, such as clothing expenses, piano lessons19

and the like. The evidence does not preponderate against the trial court’s decision. The trial court is affirmed on this issue. Wife also argues that

the trial court er

red in not requiring Husband to obtain a $400,000 life insurance policy on himself. Life insurance is necessary, Wife maintains, to secure any child support obligations that Husband may be assessed. Husband testified at trial that he was basically in good health except for “certain aches and pains as any sixty year old man,” but later testified that he was unable to obtain life insurance on himself. Tennessee Code Annotated § 36-5-101 provides that

The court may direct

either or both parties to designate the other party and the children of the marriage as beneficiaries under any existing policies insuring the life of either party and maintenance of existing policies insuring the life of either party, or the purchase and maintenance of life insurance and designation of beneficiari

es. Tenn. Code Ann. § 36-5-101(g) (Sup p. 1997). Thus,

the statute explicitly authorizes a trial judge to order a parent to obtain life insurance to secure child support obl igations. “The legislature specifically

left the determination of whether to order a party to procure insurance for the benefit of the other party and children of the marriage

to the discretion of the trial court.” Young v. Young , No. 01A01-9610-CH-00473, 1997 WL 910249, at *287 (Tenn. App. 1997). The trial c ourt did not addresswhether life insurance is appropriate in this case. We remand for a deter mination on this issue, in light of the trial court’s decision on an award of child support on remand. Finally, Wife seeks compensation for her attorney’s fees and for the costs of this litigation. “The decis ion to award attor ney’s fee s to a party i

n a divorce proc

eeding is within th

e so un d discretion of the trial court and wi ll not be disturbed upon appeal unless the evidence preponderates against such a decision.” Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. App. 1992). In Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983), the Court held: The right to an allowance of legal expenses is not absolute. It is conditioned upon a lack of resources to prosecute or defend a suit in good faith. This rule is to enab le the wife, when destitute of means of her own, to obtain justice and to prevent its denial. If a spouse does not have separate property of her own which is adequ

ate to defray the expenses of suit, certainly she shoul d not be den ied access to the courts because she is un

able to procure c

ounsel. Id. at 749 (citation omitted). The evidence supports the trial court’s refusal to order either partyto pay attorney’s fees or court costs. The trial court is affirmed on this issue. In sum, we affirm

the trial court’s decisionto declare the parties divorced without granting

a divorce to either. The trial court’s division of the real proper

ty is affirmed. Likewise, we affirm the trial court’s holding that personal property is awa rded to the party who possesses it. Wife’s20

request for reimbursement of expenses on the Adams property is denied. The cause is remanded

to the trial court for a determination regarding the Morgan

Keegan and Nap

olean Enterprise

s accounts, the $200,000 loan, Wife’s legal fees for representing Husb and’s corporati

on, and Wife’s loa

n to Husbandfor his car note. In all other resp

ects, the trial co

urt’s property di

vision is affirmed. We find no error in the trial court’s decision to divide the marital estate in the absence of a formal accounting by Husband. In view of the hostile relation ship between the parties and Husband’s refusal to communicate wit h Wife regarding their daughter, the trial court’s award of joint custody is reversed and sole custody is awarded to Wife. In order to enable Wife to adequa tely monitorthe parties’ daughter’s school work, the vis itation arrangement is modified during the school year. During the school year, Husband’s visitation on alternate weeks shall begin on Wednesda ys after school and end Monday when he brings McKenzie

to school. In all oth

er respects,

such as holidays, vacations and alternating weeks during the summer months,

the visitation arrangement is affirmed. The cause is remanded to the trial court for a determination regarding child support in light of the modification of the trial court’s order regarding custody and visitation. The trial court’s decision not to require Husband to contribute toward the parties’ daughter’s private school ex

penses isreversed, and the cause is r

emanded to

determine the appropriate portion of the child’s tuition and expenses for St. Mary’s Episcop

al School to be paid

by Husband. Furthermore, the cause is remanded to the trial court for a dete

rmin at ion of whether life insurance on Husband’s life is appropriate based on the facts of this

case and this

Court’s modification of the visitation arrangement. The trial court’s order on Husband’s arrearage in child support, permitting him to offset the a rrear age with other child-related

expenditures, is affirmed. The trial court’s refus al to require either party to pay the other’s attorney’s fees or court costs is affirmed. In all other respects, the decision of the trial court is affirmed.21

The decision of the trial court is affirmed in part, reversed in part, modified and remanded as set forth above . Costs on appeal ar e taxed equally to

both parties.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.