IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 21, 2019 Session

KRISTIN EDGE HUNT-CARDEN v. JASON VINCENT CARDEN

Appeal from the Circuit Court for Hamilton County

No. 15D1915 Ward Jeffrey Hollingsworth, Judge

___________________________________

No. E2018-00175-COA-R3-CV

___________________________________

This appeal involves a marriage of short duration. Following a bench trial, the court 

granted the wife a divorce and classified and divided the parties’ marital estate. The 

husband takes issue with the trial court’s classification and division of the marital 

property, as well as the award of alimony to the wife. The wife seeks attorney fees and 

costs. We affirm in part as modified and reverse in part.

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

Affirmed in Part as Modified and Reversed in Part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Alan R. Beard, Chattanooga, Tennessee, for the appellant, Jason Vincent Carden.

Catherine M. White, Chattanooga, Tennessee, for the appellee, Kristin Edge HuntCarden.

OPINION

I. BACKGROUND

The parties, Kristin Edge Hunt-Carden (“Wife”) and Jason Vincent Carden 

(“Husband”), met in December 2011 and became engaged in January 2013. It appears 

that the wedding occurred on October 11, 2013.

Prior to the marriage, Wife and Husband were already living together in a premarital residence owned by Husband located at 2821 Deerfield Drive, Ooltewah, 

03/03/2020
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Tennessee (“Deerfield”), which Wife was leasing from Husband. Wife paid the bills for 

the utilities and had an alarm system installed.

1

Two months prior to the marriage, on August 5, 2013, the couple located the 

property at 9231 Royal Mountain Drive, Chattanooga, Tennessee (“Royal Mountain”). 

Husband purchased the residence and put the property in his name as well as the debt. 

Husband paid down $146,586.58 from funds he had previously obtained in an insurance 

settlement. The house was purchased for $445,000 and valued at time of trial at 

$475,000. Wife noted that Husband did not ask her to sign a post-nuptial agreement and 

did not express to her that Royal Mountain was going to be owned solely by him. 

Husband admitted that he never asked Wife to sign a pre- or post-nuptial agreement. 

Sandy Battles, a realtor, testified that Husband introduced Wife to her as his fiancé 

and stated that “they” were looking “for a house that would fit their family.” Ms. Battles 

related that she showed Wife and Husband together three or four houses until the Royal 

Mountain residence was chosen. She recalled that Husband was alone at the closing, that

he put down a sizeable down payment, and that the house was titled in his name.

Julie Sexton, Husband’s former wife, stated at trial that Husband confirmed to her

that he and Wife “were getting married[,] they were going to buy a house and that there 

would be a bedroom for all the kids.” As to the marriage to Wife, Ms. Sexton noted that 

Husband told her that he and Wife were building a family together and “that [t]here was a 

lot of work done on all the kids’ rooms to make them feel like a home for all three boys.”

Wife’s child from another marriage was to reside with her and Husband in the marital 

residence.2

Wife testified that the couple purchased the new house “in anticipation of 

marriage.” According to Wife, she decorated, repainted, cleaned the carpet, customized 

her son’s closet and desk, and got the house ready as a home for the family. She claimed 

that certain furnishings in the home were brought from her prior house in Alabama. 

Upon moving into the new residence, the alarm system which belonged to Wife at 

Deerfield was installed and the service transferred to Royal Mountain. Wife claimed that 

at the new house, she did the majority of the lawn upkeep, cleaning, and laundry. In 

general, she kept the home maintained in good and orderly condition. She also did most 

of the cooking. Wife related: “I was expected to make it look perfect in the inside and 

have, you know, meals ready . . . . [It was] a lot of pressure and control. I wasn’t

allowed to work [outside the home]. . . . I really wasn’t allowed to even leave the home

much.” Wife claimed that Husband “was very controlling.” According to Wife,

Husband rationed food intake and shower time for her and her son. She asserted that her 

 

1

The equipment/service was later moved to the marital home.

2Wife related that her son has Autism Spectrum Disorder, Asperger’s, and developmental 

delays.
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parents opened a Sam’s Club Warehouse account for her to buy extra groceries because 

she and her son “were not allowed to ea[t] as much food as Jason and his children.” 

Wife contended that Husband began abusing her physically in March 2014, when 

he struck her so hard that it knocked her over backwards and her head hit the bed post. 

Wife stated that when Husband punched her on the side of the head, “she saw white, a 

flash of white.” She claimed that she “had never been hit ever, and so hard” and “that the

pain was excruciating.”

At trial, Wife introduced a stream of text messages from Husband in which it 

appeared that he was apologizing:

A: Thank God, no bleeding, no fracture. I just don’t know 

what to say. I had no idea it was that bad. I am so incredibly 

ashamed of myself, Kristin. I will never forgive myself. I’m 

so, so sorry.

* * *

A: I’m so sorry, sweetie. Please believe that I am here for 

you and will never, ever let you down. Please trust me. 

Please trust me. Please put ice on your head and eye. . . . I 

know you wish you’d never met me. I feel like a meaningless 

nobody. I hate myself so much.

* * *

A. . . . It’s not your fault, at all, sweetie. I need to work on 

me. I’m not a monster, Kristin. . . .

* * *

A. . . . I’m so sorry for everything. I really am. I can’t tell 

you how ashamed I am. I will never, ever forgive myself. I

know you don’t believe me, but I am not a bad person. . . .

* * *

A. It will go – it will go away. Sometimes it just takes 

awhile. I’m very, very sorry, sweetie. I am so, so sorry. You 

really should put ice on your head and we should have done 

that last night.
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Husband contended that he was apologizing because Wife had suffered a seizure, that he 

had failed to keep watch over her, and that he had not been there to help her when she 

needed him. He asserted that his apologies were in response to Wife accusing him of 

neglecting her. Husband claimed that he did not hit Wife and that any injuries about 

which she complained occurred during seizure episodes. Wife responded that she does 

not have the type of seizures (grand mal) that would cause her to fall; rather, her seizures 

just interrupted her ability to sleep and had not occurred in a very long time. According 

to Wife, the couple continued to have “[a] lot” of arguments and the relationship “was 

very, very, very abusive.” 

Although Wife claimed that she was too afraid to seek medical attention because 

of retaliation, she contended that her treatment records reveal a concussion on March 10, 

2014; another concussion on May 2, 2014; a cut on her leg on August 27, 2014; and an 

eye injury dated June 11, 2015. She reported injuries to her neck and back on September 

8, 2015; dysphagia on March 2, 2016; and hearing issues and vertigo on March 9, 2016,

and April 6, 2016. Wife asserted that twice she had been awakened by Husband having 

nonconsensual sex with her - suffering injuries to her rectum requiring medical treatment

after the second act.

Wife claimed that she developed a significant disruption in her speech. Gayle 

Tucker, a speech therapist, diagnosed aphasia, dysphonia, and dysfluency.3 She opined

that there was no “reason to believe that Wife was malingering.” Dr. Adele B. Ackell, a 

neurologist, concluded that because tests did not reveal an organic reason, Wife’s speech 

symptoms were stress-related. Stephen Muller, Wife’s therapist, opined that Wife was 

suffering from post-traumatic stress disorder due to being abused by Husband. Wife

testified that she was unable to work currently because she has difficulty communicating 

her thoughts and problems focusing and concentrating. The field she formerly worked in 

requires that an individual have good communication skills.

On September 30, 2015, Wife filed a petition for order of protection, alleging that 

Husband has a history of domestic abuse and violence and that he had threatened her life. 

After an ex parte order of protection was granted, Wife also filed a complaint for divorce 

and obtained a temporary restraining order against Husband. She alleged in her 

complaint for divorce that “[Husband] creates a hostile living environment at the marital

residence, he has threatened and exhibited violence against [Wife] and his own minor 

children, and is guilty of extreme verbal and emotional abuse to [Wife].”

4

She sought a 

 

3Ms. Tucker observed that “when we say just aphasia we’re talking about someone who 

had functional speech and language and something happens and they have a disruption. . . .” She 

testified that dysphonia is a voice disorder and dysfluency is a disruption in the flow of speech.

4Counsel for Wife filed a motion to amend the complaint that alleged, “Wife has been the 

subject of numerous vicious physical assaults and verbal abuse by the Husband resulting in 

serious physical and emotional injury, for which she seeks damages of no less than 
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divorce from Husband based on inappropriate marital conduct. In the temporary 

restraining order, Wife obtained exclusive temporary possession of the marital residence. 

The parties had been married less than two years. No children were born to the marriage.

Husband argued that Wife was faking severe abuse in an attempt to retain his 

house and to set herself up for huge payments from him. He noted that not a single 

neighbor, friend, family member, co-worker, or any other witness appeared at trial to 

corroborate that any injuries ever occurred to Wife. He asserted that no police reports or 

any medical records were provided to substantiate that such severe injuries were endured 

by Wife. Husband testified on direct that no one in his family was violent. However, on 

cross, he admitted that his brother had been charged with domestic assault on his 

girlfriend. Wife claimed that Husband’s brother had a terrible temper and that the family 

had sought to have him committed. She noted also that Husband had told her that his 

mother “had a very short fuse” and was “very verbally abusive” to him and his brother. 

Husband’s ex-wife, Ms. Sexton, corroborated certain claims by Wife. 

At the time of trial, Husband’s year-to-date earnings averaged out to $8,340.74 

gross per month. Husband had accumulated in his 401K a sum of $100,597.00 in marital

assets. He claimed that on the day she filed for divorce, Wife removed $21,000 from a

SunTrust money market account holding his pre-marital funds that had not been

comingled or transmutated. Wife, however, testified that she had contributed money to 

the account during the time the couple resided at Royal Mountain, depositing her child 

support and money from her parents into the joint SunTrust account, out of which 

payments for the mortgage and alarm system were made. Wife indicated that Husband 

never claimed any of the money was separate. A review of the joint SunTrust statements 

from June 2014-September 2015 revealed that the money market account and savings 

account were each titled in both parties’ names as well as the checking. Further, money 

was transferred between the accounts.

The trial court noted in its January 2, 2018, order that “neither party distinguished 

themselves in the field of veracity,” but that “Husband is the les[s] credible of the two.” 

The court found Husband guilty of inappropriate marital conduct based on evidence other 

than the photos (i.e., text messages) and granted Wife a divorce on those grounds. As to 

the house, the court recognized “an intention by Husband to treat what may have been 

separate property as marital. It was a gift to the marital estate . . . . Husband’s actions 

before and at the time of the purchase indicated that, at that time, he intended the house 

as a gift to the estate. He cannot rescind that gift later, when the relationship begins to 

sour.” The court ordered that upon the sale of the house, Wife was to receive $100,000 

of the proceeds. The court further found the marital portion of Husband’s retirement to 

be $100,597, and ordered it equally divided.

 

$5,000,000.00 in actual and putative damages by jury trial.”
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In an order regarding discretionary costs, the court ruled:

The [Husband] was not the prevailing party. The [Wife] was

awarded the divorce based on [Husband’s] inappropriate 

marital conduct. She was awarded alimony. Court costs 

were assessed against the [Husband]. The expert witnesses 

were hired in regard to the [Husband’s] allegation that certain 

photographs produced by the [Wife] were altered or staged. 

He did not prevail on that issue. 

In regard to attorney’s fees, the Court is well aware of the

frustration in getting this case to a final hearing. However, 

the [Husband] has not produced any proof that those delays 

were primarily as a result of the [Wife’s] actions. That 

request is DENIED.

II. ISSUES

The issues raised in this appeal are restated as follows:

a. Does the evidence support the trial court’s finding that Husband 

made a gift of his pre-marital real estate to the marriage?

b. Does the evidence support the trial court’s award of the equity in 

the marital residence to Wife, in that the court found it had been 

gifted to the marriage by Husband and given the statutory factors?

c. Did the evidence support the trial court’s finding that Husband hit 

Wife, that she was the more credible witness, and that she was the 

prevailing party?

d. Whether the trial court correctly relied upon other evidence of 

abuse by Husband rather than the photographs.

e. Does the evidence preponderate in favor of the trial court’s award 

of alimony to Wife given the statutory factors?

f. Does the evidence preponderate in favor of the trial court’s failure 

to award Wife her attorney’s fees given the statutory factors?

g. Is Wife entitled to attorney’s fees and costs incurred on appeal?
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III. STANDARD OF REVIEW

This case was tried by the court without a jury. The review of the trial court’s

findings of fact is de novo with a presumption of correctness unless the evidence 

preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 

685, 692 (Tenn. 2013). Our review of a trial court’s conclusions of law is de novo upon 

the record with no presumption of correctness. Tyron v. Saturn Corp., 254 S.W.3d 321, 

327 (Tenn. 2008).

The trial court has broad discretion in fashioning an equitable distribution of

marital property, and an appellate court will defer to a trial court’s distribution unless it is 

inconsistent with the statutory factors or is not supported by a preponderance of the 

evidence. Baggett v. Baggett, 422 S.W.3d 537, 543 (Tenn. Ct. App. 2013).

Trial courts have broad discretion to determine spousal support if needed and, if 

so, the nature, amount, and duration of the award. Gonsewski v. Gonsewski, 350 S.W.3d 

99 (Tenn. 2011); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. 

Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). The role of an appellate court in reviewing 

an award of spousal support is to determine whether the trial court applied the correct 

legal standard and reached a decision that is not clearly unreasonable. Broadbent v. 

Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second guess 

a trial court’s decision absent an abuse of discretion. Robertson v. Robertson, 76 S.W.3d 

337, 343 (Tenn. 2002). An abuse of discretion occurs when the trial court causes an 

injustice by applying an incorrect legal standard, reaches an illogical result, resolves the 

case on a clearly erroneous assessment of the evidence, or relies on a reasoning that 

causes an injustice. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); 

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). This standard does not 

permit an appellate court to substitute its judgment for that of the trial court, but reflects 

an awareness that the decision being reviewed involved a choice among several 

acceptable alternatives, and thus envisions a less rigorous review of the lower court’s 

decision and the decreased likelihood that the decision will be reversed on appeal.

Henderson, 318 S.W.3d at 335 (quoting Lee Medical Inc. v. Beecher, 312 S.W.3d 

515,524 (Tenn. 2010)). Consequently, when reviewing a discretionary decision by the 

trial court, such as an alimony determination, the appellate court should presume that the 

decision is correct and should review the evidence in the light most favorable to the 

decision. Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335.

For an award (or denial) of attorney’s fees, the standard of review is whether an

abuse of discretion occurred at the trial level by the trial court. The decision to award 

attorney’s fees as alimony in solido is within the sound discretion of the trial court. 

Crabtree, 16 S.W.3d at 361 and Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. 
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App. 1995). The appellate court will not interfere with an award, except upon a showing 

of an abuse of discretion, where the evidence preponderates against the award. Long v. 

Long, 957 S.W.2d 825 (Tenn. Ct. App. 1997); Elliot v. Elliot, 825 S.W.2d 87, 92 (Tenn. 

Ct. App. 1991); Butler v. Butler, 680 S.W.2d 467, 470 (Tenn. Ct. App. 1984). As for the 

standard required for an award of attorney’s fees incurred on appeal, this determination is 

within the sole discretion of the appellate court. Archer v. Archer, 907 S.W.2d 412, 419 

(Tenn. Ct. App. 1995).

IV. DISCUSSION

a.

Husband argues that the residence is owned solely by him and is a pre-marital 

asset. He notes that Wife’s name is neither on the deed nor on the note. He asserts that 

he has paid for all the upkeep and maintenance on the home and that, including food, 

Wife has only contributed approximately $300 per month to any household expenses.

According to Husband, Wife frequently asked him to put her name on the title, but that he 

“just didn’t feel comfortable putting her on the deed to my house.” He contends that 

there was no understanding by the parties that the real estate was transmuted to Wife in 

any way. Husband argues that no proof has been provided of Wife’s contributions to the 

joint account or payments she made toward the mortgage. He notes that he paid every 

single mortgage, insurance, property tax, and utility payment pursuant to the order of 

protection.

Dividing a marital estate necessarily begins with the systematic identification of 

all of the parties’ property interests, classifying each of these interests as either separate 

or marital property. Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003); Conley v. 

Conley, 181 S.W.3d 692, 700 (Tenn. Ct. App. 2005); Anderton v. Anderton, 988 S.W.2d 

675, 679 (Tenn. Ct. App. 1998). Tennessee is a “dual property” state. Smith v. Smith, 93 

S.W.3d 871, 875-76 (Tenn. Ct. App. 2002). Accordingly, property cannot be included in 

the marital estate unless it fits within the statutory definition of “marital property.” Tenn. 

Code Ann. § 36-4-121. By the same token, “separate property” should not be included in 

the marital estate. Id.

As general rule, assets acquired by either spouse during the marriage are presumed 

to be marital property. Church v. Church, No. M2004-02702-COA-R3-CV, 2006 WL 

2168271, at *7 (Tenn. Ct. App. Aug. 1, 2006); Hunter v. Hunter, No. M2002-02560-

COA-R3-CV, 2005 WL 1469465, at *4 (Tenn. Ct. App. June 21, 2005). Similarly, assets 

acquired by either spouse prior to the marriage are presumed to be separate property.

Tenn. Code Ann. § 36-4-121. “Separate property” means “[a]ll real and personal 

property owned by a spouse before marriage.” Id. “Assets acquired by either spouse 

prior to the marriage are presumed to be separate property.” Id.; McFarland v. 
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McFarland, No. M2005-01260-COA-R3-CV, 2007 WL 2254576, at * 5 (Tenn. Ct. App. 

Aug. 6, 2007). 

The doctrines of transmutation and commingling provide an avenue whereby 

separate property can become marital property. See Eldridge v. Eldridge, 137 S.W.3d 1, 

13-14 (Tenn. Ct. App. 2002):

[S]eparate property becomes marital property [by 

commingling] if inextricably mingled with marital property or 

with the separate property of the other spouse. If the separate 

property continues to be segregated or can be traced into its 

product, commingling does not occur. . . . [Transmutation] 

occurs when separate property is treated in such a way as to 

give evidence of an intention that it becomes marital property.

. . . The rationale underlying these doctrines is that dealing 

with property in these ways creates a rebuttable presumption 

of a gift to the marital estate. This presumption is based upon 

the provision in many marital property statutes that property 

acquired during the marriage is presumed to be marital. The 

presumption can be rebutted by evidence of circumstances or

communications clearly indicating an intent that the property

remain separate.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (citing HOMER H. 

CLARK, The Law of Domestic Relations In The United States § 16.2 at 185 (2d ed.

1987)). “Marital property” must be divided equitably between the parties; “separate 

property” is not subject to division. Tenn. Code Ann. § 36-4-121(a)(1). 

The classification of property as either separate or marital is a question of fact for 

the trial court. Bower v. Bower, No. E2011-00978-COA-3-CV, 2012 WL 1752401, at *7 

(citing Mitts v. Mitts, 39 SW.3d 142, 144-45 (Tenn. Ct. App. 2000)). Trial courts are 

vested with a large measure of discretion when classifying and dividing the marital estate, 

thus their decisions are entitled to great weight on appeal. Sullivan v. Sullivan, 107 

S.W.3d 507, 512 (Tenn. Ct. App. 2002). Unless the court’s decision is contrary to the 

preponderance of the evidence or based on an error of law, it will not be second-guessed 

on appeal. Id.

In this case, the parties shopped as an engaged couple for the house they would 

move into as husband and wife. It was purchased just two months prior to their wedding 

in anticipation of their marriage. The real estate located at Royal Mountain was used as 

the marital residence. It was maintained and managed primarily by Wife. Wife and

Husband comingled their money in a joint bank account out of which the mortgage 

payment was made. Wife noted that the money she placed in the account came from 
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child support and any cash her parents gave her. Wife’s premarital alarm system was 

transferred to the marital residence, payments for which came out of the joint account. 

The court found the testimony of the realtor, Ms. Battles, to be persuasive. She

stated that Husband introduced Wife as his fiancé and that “they” were looking for a 

house to move into as a family. Ms. Sexton, Husband’s former wife, related that he 

confirmed to her “that as they were getting married, they were going to buy a house and 

that there would be a bedroom for all the kids.” She further stated Husband commented 

that “they were building a family together . . . there was a lot of work done on all the 

kids’ rooms to make them feel like a home for all three boys.”

Even though the title to the home remained in Husband’s name, his actions in 

concert with Wife established that more likely than not, the property became marital. 

Separate property can become marital property even without a change in the title. As this 

court said in Mondelli v. Howard, 780 S.W.2d 759, 774 (Tenn. Ct. App. 1989), “[i]n the 

final analysis, the status of property depends not on the state of its record title, but on the 

conduct of the parties.” Although Husband may consider Wife’s contributions to be 

minor, the evidence in the record is sufficient to support the trial court’s finding of 

transmutation of the Royal Mountain house. Accordingly, we conclude that the trial 

court did not err in classifying the home as marital property. 

b.

In all divorce cases, after classifying the parties’ property, the trial court is 

directed to “equitably divide, distribute or assign the marital property between the parties 

without regard to marital fault in proportions as the court deems just.” Tenn. Code Ann. 

§ 36-4-121(a)(1); Davidson v Davidson, No. M2003-01839-COA-R3-CV, 2005 WL 

2860270, at *2 (Tenn. Ct. App. Oct. 31, 2005); Edmisten v. Edmisten, No. M2001-00081-

COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003). Decisions 

regarding the value of marital property are questions of fact. Kinard v. Kinard, 986 

S.W.2d at 231. Accordingly, they are entitled to great weight on appeal and will not be

second-guessed unless they are not supported by a preponderance of the evidence. Smith, 

93 S.W.3d at 875; Ray v. Ray, 916 S.W.2d 469, 470 (Tenn. Ct. App. 1995). In making an 

equitable division of marital property, the trial court is guided by the following relevant 

factors:

(1) The duration of the marriage;

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

employability, earning capacity, estate, financial liabilities 

and financial needs of each of the parties;
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(3) The tangible or intangible contribution by one (1) party to 

the education, training or increased earning power of the 

other party;

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

capital assets and income;

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

preservation, appreciation, depreciation or dissipation of the 

marital or separate property, including the contribution of a 

party to the marriage as homemaker, wage earner or parent, 

with the contribution of a party as homemaker or wage earner 

to be given the same weight if each party has fulfilled its role;

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

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

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

division of property is to become effective;

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

the reasonably foreseeable sale of the asset, and other 

reasonably foreseeable expenses associated with the asset;

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

spouse; and

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

equities between the parties.

Tenn. Code Ann. § 36-4-121(c). The factors are not listed in order of importance, and 

each is to be considered in relation to the specific facts of each case. See Powell v. 

Powell, 124 S.W.3d 100, 108 n. 8 (Tenn. Ct. App. 2003).

The court found the factors weighing in Wife’s favor and against Husband were as 

follows: 

Her physical and mental injuries caused by Husband’s abuse, 

her lack of employability, her inferior earning capacity to 

Husband, her lack of separate property except her furnishings 

and vehicle (Husband still retained his premarital assets), her 

financial liabilities caused by this case, and her financial 
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needs. (factor (2))

Her inferior ability as compared to Husband for future 

acquisitions of capital assets and income. (factor (4)

Her contribution to the acquisition, preservation, and 

appreciation of the marital assets, including her contribution 

to the marriage as a homemaker and former wage earner. 

(factor (5))

She had no pre-marital property except for her furnishings 

and vehicle. Husband, however, has a pre-marital value in his 

401K of $104,603.00 and a pre-marital value of $1,227.00 per 

month in his pension when he starts to draw. (factor (6))

She had no separate property at the time of the marriage 

except for her furnishings and her vehicle. Husband owned a 

house at 2821 Deerfield Drive in Ooltewah, his vehicle, a

401K, and a pension. (factor (7))

She will still be in poor economic circumstances at the time 

of the division because of factor (2). (factor (8))

She cannot readily access cash from her marital portion of the 

401K without facing a 40% penalty and tax. (factor (9))

Wife came into this marriage without physical and emotional 

injuries to include PTSD and a resulting speech impairment. 

Wife came into this marriage with a place to live and the 

means to pay for it. To put her back in the same position she 

was in when she came into the marriage, required the division 

that the trial court made. “Once the Wife receives her [ ]

share from the sale of the home, Husband’s alimony 

obligation will end.” (factor 11))

At the time of the marriage, the equity in the home was $145,000, which was the 

sale price of $445,000 minus the principal amount of the new loan, $300,000. At the 

time of the divorce, the equity in the home was determined to be $194,794. Husband 

claims that the rise in overall equity during the marriage, approximately $50,000, is 

marital. 

We find that Husband should be awarded as his separate property the amount of 

his down payment on the Royal Mountain residence, $146,586.58. Upon the sale of the 
- 13 -

house, Wife is awarded one half of the remaining equity in the marital home after that 

payment, in addition to the award of one half of the marital interest in Husband’s 

retirement (as found by the trial court).

c. & d.

Husband argues that the evidence does not support the trial court’s findings that he 

hit Wife, that she was more credible, and that she was the prevailing party. The court,

weighing the credibility of the parties, found that Wife was the more credible witness 

because Husband denied hitting her. The trial court indicated as follows:

As noted previously, the Wife accuses the Husband of 

physical abuse [in her texts]. He never denies it. Instead he 

responds, “I am so incredibly ashamed of myself” “I’m not a 

monster, Kristen.” “I am not a bad person.” Apologies so 

profound and expressions of such regret do not usually come 

from someone guilty of momentary inattention. The Wife’s 

testimony on this issue is more credible. The Wife has 

proven inappropriate marital conduct by the Husband and the 

divorce will be granted to her on those grounds. 

In an order regarding discretionary costs, the court ruled:

The [Husband] was not the prevailing party. The [Wife] was

awarded the divorce based on [Husband’s] inappropriate 

marital conduct. She was awarded alimony. Court costs were 

assessed against the [Husband]. The expert witnesses were 

hired in regard to the [Husband’s] allegation that certain 

photographs produced by the [Wife] were altered or staged. 

He did not prevail on that issue. . . .

Because trial courts are in a far better position than this court to observe the 

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

lies in the first instance with the trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 

(Tenn. Ct. App. 1991). Consequently, where issues of credibility and weight of 

testimony are involved, we will accord considerable deference to the trial court’s factual 

findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. 

England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). We will not 

re-evaluate a trial court’s credibility determinations “‘absent clear and convincing 

evidence to the contrary.’” Davis v. Davis, 223 S.W.3d 233, 238 (Tenn. Ct. App. 2006) 

(citing Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)). We find that a 

preponderance of the evidence supports the determination of the trial court. There was 
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no clear and convincing evidence to the contrary. We are, therefore, disinclined to 

disturb the trial court’s decision.

As for the battle of the experts regarding the photographs and make up, the trial 

court found the evidence to be conflicting and confusing. Husband claimed that the

images of Wife’s injuries as depicted in photographs she took with her phone were faked,

and that Wife had used make-up to make her skin appear bruised. Husband asserted 

further that the metadata5connected to the images revealed that the photographs were 

created after Wife had obtained a protective order against him. Husband’s expert, Jim 

Wells, testified that the metadata indicated that all the pictures were taken during 

February and March 2016, long after the order of protection. He asserted that the camera 

used to take the pictures had an IOS (“Internal Operating System”) that was not released 

to the public until after the order of protection. Wife claimed that the abuse pictures were 

taken before the protective order hearing, but that except for the one picture of the 

swollen left eye, the other photos had disappeared from her phone by the time of the 

hearing. According to Wife, Husband, an IT expert at Unum, lifted the photographs from 

their shared iCloud account and manipulated the metadata to make it look as if the 

photographs were created after the protective order was entered. She surmised that 

Husband missed the one image relating to the eye because he only conducted a search for 

pictures showing bruises. Husband claimed that he did not have access to Wife’s iCloud 

and did not manipulate the metadata. Wife’s expert, Steve Linn, concluded that the 

metadata of the photos had been manipulated. He also determined that a spying 

application had been present on Wife’s laptop. Wife’s photograph expert, Joshua 

Berman, testified that the photographs had not been photo shopped and the images 

themselves had not been manipulated.

Husband’s expert, Dr. Martha Burt, opined that the images in the photographs did 

not match up with how typical bruising appears. She related that the coloration and 

shapes, as well as other indicators, left her with no doubt that the pictures were not of 

injuries. As to the pictures depicting a swollen eye, Dr. Burt testified that they do not, in 

her opinion, depict trauma, due to an absence of any discoloration or bruising. 

Husband’s make-up expert, Joseph Mistretta, observed that the photographs revealed 

particles of residue where Wife had scraped the make-up off. He claimed that the 

discoloration in the images was makeup and that it was used in every picture. 

Wife’s make-up expert, Susan Maccoy, opined that the photos revealed no 

evidence of make-up in the pores on Wife’s skin. She described broken capillaries that,

in her opinion, could not be manufactured because of their tiny size. She also claimed 

that it would be physically impossible for Wife to put make-up on herself in order to 

make the bruises at issue. Amanda Thompson, a nurse practitioner with the Skin Cancer

 

5

“Metadata” is defined as data contained in a file about the file, such as when the photo 

was taken, what kind of camera was used, or even the GPS coordinates of where it was taken.
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and Cosmetic Dermatology Center, noted that Wife’s skin reacts to Bacitracin and

manifests what is called post-inflammatory hyperpigmentation. Further, Dr. James 

Richmond, an ophthalmologist, related that Wife’s swollen eye was not caused by Bell’s

Palsy or an eye infection. He found it within a reasonable degree of medical certainty

that trauma might have caused the eye to swell in the way that it did.

The trial court noted: “It is difficult, at best, to determine whether all or some of 

the bruises were real or manufactured (in the photographs).” The court chose to rely on 

the text messages between the parties to establish the abuse and inappropriate marital 

conduct. Additionally, Wife produced evidence through her testimony and medical 

records that more likely than not she was a battered spouse and received medical 

treatment for injuries she sustained. We find that the court had sufficient evidence to 

conclude that Wife was being abused, and that she had carried her burden of proof that by 

a preponderance of the evidence the fault for the demise of this marriage lies at the feet of 

Husband. The court appropriately determined whether there was other evidence upon 

which he could rely that was credible. Because the trial court chose to go with the other 

credible evidence as opposed to relying on the expert evidence that was contradicted and 

conflicting, the court did not commit error. Husband “did not prevail” on “the allegations 

that the photographs . . . were staged or altered.” As such, there was no clear and 

convincing evidence to contradict that Husband hit Wife, was not as credible as Wife 

because he denied doing it, and that Wife was the prevailing party. The court correctly 

awarded Wife the divorce pursuant to Tennessee Code Annotated section 36-4-101(11),

finding that she was the prevailing party.

e.

The trial courts have broad discretion to determine whether spousal support is 

needed and, if so, the nature, the amount, and duration of the award. See, e.g., Bratton v. 

Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Burlew, 40 S.W.3d at 470.

The court concluded that Wife needed transitional alimony and that Husband had 

the ability to pay. Therefore, the court fashioned transitional alimony in such a way that 

Wife was allowed to stay in the residence while Husband continued to pay for the 

mortgage and the utilities until the house could be sold and Wife received her interest in 

it. Transitional alimony is defined as “a sum of money payable by one (1) party to, or on 

behalf of, the other party for a determinate period of time. Transitional alimony 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. Tenn. Code Ann. § 36-5-121. It is designed to aid a spouse who needs financial 

assistance in adjusting to the economic consequences of establishing and maintaining a 

household without the benefit of the other spouse’s income. Transitional alimony is 

payable for a definite period of time and may be modified only upon certain 
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circumstances: (1) the parties agree that it may be modified; (2) the court provides for 

modification in the divorce decree; or (3) the recipient spouse resides with a third person 

following the divorce. Tenn. Code Ann. § 36-5-121(g)(2).

Husband asserts that he has paid this alimony for longer than the parties resided 

together. He argues that Wife has had adequate time to adjust and that alimony should 

cease.

We can find an abuse of discretion only if the trial court applied incorrect legal 

standards, reached an illogical conclusion, based its decision on a clearly erroneous 

assessment of the evidence, or employed reasoning that causes an injustice to the 

complaining party. Burton v. Mooneyham, No. M2011-00909-COA-R3-CV, 2012 WL

1070121, at *8 (Tenn. Ct. App. Mar. 29, 2012). This standard does not permit an 

appellate court to substitute its judgment for that of the trial court, but “reflects an 

awareness that the decision being reviewed involved a choice among several acceptable 

alternatives, and thus envisions a less rigorous review of the lower court’s decision and a 

decreased likelihood that the decision will be reversed on appeal.” Gonsewski, 350 

S.W.3d at 105-06. Accordingly, when reviewing a discretionary decision by the trial 

court, such as an alimony determination, the appellate court will presume that the 

decision is correct and will review the evidence in the light most favorable to the 

decision. Id. 

In determining whether to award support, Tennessee Code Annotated section 36-

5-121 provides for the weighing of certain factors:

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

to seek employment outside the home, because such party 

will be the custodian of a minor child of the marriage;

(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.

Tenn. Code Ann. § 36-5-121(i). Although each of these factors must be considered when 

relevant to the parties’ circumstances, “the two that are considered the most important are 

the disadvantaged spouse’s need and obligor spouse’s ability to pay.” Mayfield v. 

Mayfield, 395 S.W.3d 108, 116 (Tenn. 2012).

The trial court made the following findings:

Wife’s inferior earning capacity as compared to Husband’s, 

Wife’s obligations and needs, particularly due to the divorce, 

Wife’s lack of financial resources except her child support for 

her son from a prior marriage. (factor (1))

Wife’s impaired ability to communicate, caused by 

Husband’s abuse. (factor (4))

Wife’s physical and emotional injuries, caused by Husband’s 
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abuse. (factor (5))

Wife’s separate assets consist of her furnishings and car. 

Husband has a car and a 401K with a pre-marital value of 

$104,603.00 and a pension with a pre-marital value of 

$1,227.00 per month when he starts to draw. (factor (7))

The parties have had a comfortable economic standard of 

living during the marriage. (factor (9))

Wife has made contributions to the marriage by putting her 

monies into the joint bank account, by transferring her premarital alarm system (hardware and service) to the marital

home, and by doing the majority of the lawn upkeep, house 

cleaning, upkeep of the house, and cooking. (factor (10))

Husband is the cause for the demise of this marriage. (factor 

(11))

Wife is unable to work at this time due to her PTSD, stutter, 

and inability to communicate her thoughts. Husband’s abuse 

more likely than not caused Wife’s condition. Moreover, 

Wife’s alimony will be taxable to her and deductible by 

Husband. (factor (12))

The court found that given Husband’s superior earning capacity, until Wife can receive 

her interest in the marital assets, she should remain in the marital residence and Husband 

should continue to make the mortgage and utility payments on the home as transitional

alimony. The trial court determined that once Wife received money from her interest in 

the marital residence, the alimony would end.

In our view, the court was not in error in awarding transitional alimony based on a 

preponderance of the evidence presented. Wife’s Income and Expense Statement and her 

testimony regarding same supports this award. The record before us demonstrates fault 

on the part of Husband and need on the part of Wife. See Fisher v. Fisher, 648 S.W.2d 

244 (Tenn. 1983). The preponderance of the evidence supports a determination that 

Husband had the ability to pay this support. 

f.

The trial court held that “[e]ach party is to pay their own attorney fees.” Wife 

posits that the trial court erred by failing to award her attorney’s fees as alimony in 
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solido.

When determining whether to award attorney’s fees as alimony in solido, the trial 

court should consider the evidence in relation to the statutory factors set forth in 

Tennessee Code Annotated section 36-5-121(i). The general rule is that a “spouse with 

adequate property and income is not entitled to an award of alimony to pay attorney’s 

fees and expenses.” Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997). 

“Such awards are appropriate only when the spouse seeking them lacks sufficient funds 

to pay his or her own legal expenses, or the spouse would be required to deplete his or 

her resources in order to pay them. Houghland v. Houghland, 844 S.W.2d 619, 623 

(Tenn. Ct. App. 1992); Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980). 

The facts of this case support an award of attorney’s fees and litigation expenses as 

alimony in solido, as Wife currently has little income and lacks the funds to pay these 

fees. She is clearly economically disadvantage compared to Husband. Given the fact 

that Husband was found to be at fault in causing the demise of the marriage, was not 

credible, and given his superior earning capacity and separate property, the court erred in 

ordering each party to pay their own attorney’s fees, as Wife will otherwise be required to 

deplete any assets that she was awarded to pay same. 

Wife is entitled to an award of attorney’s fees as alimony in solido. We therefore 

remand this issue to the trial court for the determination of a reasonable amount of 

attorney’s fees to be awarded to Wife at the trial court level.

g.

For the same reasons that Wife seeks attorney’s fees at the trial level, she also 

seeks attorney’s fees incurred at the appellate level. Wife does not work, cannot work at 

this time due to her health, and will have to encroach upon her award of equity in the 

house to pay for same, while meanwhile facing the end of transitional alimony upon the

sale of the house, signaling the beginning of her reliance on those proceeds to support 

herself. 

As we have stated:

[I]t is in the sole discretion of this court whether to award 

attorney’s fees on appeal. As such, when this court considers 

whether to award attorney’s fees on appeal, we must be 

mindful of “the ability of the requesting party to pay the 

accrued fees, the requesting party’s success in the appeal, 

whether the requesting party sought the appeal in good faith, 

and any other equitable factor that need be considered.”
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Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723, at *13 (Tenn. Ct. 

App. Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 

22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted). Taking these 

factors into account, we award Wife her attorney’s fees on appeal.

V. CONCLUSION

The trial court’s findings are affirmed in part as modified and reversed in part. We 

award Husband the amount of his down payment on the marital home. The trial court’s 

judgment denying an award of Wife’s attorney’s fees is reversed, as we determine that 

Wife is entitled to an award of attorney’s fees incurred at the trial level as alimony in 

solido. We remand the issue of the amount of reasonable attorney’s fees to be awarded to 

Wife to the trial court for an appropriate award. Wife is also awarded her attorney’s fees 

and costs incurred on appeal. This case is remanded for any further proceedings as may 

be necessary and are consistent with this opinion. The costs of this appeal shall be taxed 

to the appellant, Jason Vincent Carden.

_________________________________

JOHN W. MCCLARTY, JUDGE