IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 15, 2011 Session

MARCELLA E. MAY v. DONALD B. MAY, ET AL.

Appeal from the Domestic Relations Court for Meigs County

No. D-760 Jayne Johnston Crowley, Judge

No. E2010-01026-COA-R3-CV-FILED-NOVEMBER 29, 2011

After twenty-five years of marriage, Marcella E. May (“Wife”) sued Donald B. May

(“Husband”) for divorce. Husband’s adult son Donald P. May (“Son”) was added later to

the suit as a defendant concerning a real property transfer. After a trial, the Trial Court

entered its Final Decree of Divorce, inter alia, awarding Wife a divorce, dividing the marital

property, awarding Wife transitional alimony, and awarding Wife judgment for attorney’s

fees against Husband. After further hearing, the Trial Court entered subsequent orders

awarding Wife $63,474.34 in attorney’s fees and $2,965.77 in costs against Husband, and

$4,083.50 in attorney’s fees against Son. Husband and Son appeal to this Court raising

issues regarding the classification and distribution of specific property, and the awards of

alimony and attorney’s fees. We affirm with regard to the classification and distribution of

property, the award of alimony, and the award of attorney’s fees against Husband. We find

and hold that no contractual or statutory basis allowed for an award of attorney’s fees against

Son, and we, therefore, vacate the award to Wife of a judgment for attorney’s fees against

Son.

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

Affirmed, in part; Vacated, in part; Case Remanded

D. MICHAEL SWINEY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and CHARLES D. SUSANO, JR., J., joined.

D. Mitchell Bryant, Athens, Tennessee, for the appellants, Donald B. May and Donald P.

May.

Harold L. North, Jr., Chattanooga, Tennessee, for the appellee, Marcella E. May.
OPINION

Background

Husband and Wife married in 1983. No children were born of the marriage.

Wife sued Husband for divorce in 2008. Wife later alleged that certain marital real property

had been erroneously or fraudulently conveyed to Son, and Wife was granted leave to amend

her complaint to add Son as a defendant to the suit concerning this real property. The case

proceeded to trial without a jury.

At the time of trial, Husband was 75 years old and had no health issues.

Husband holds a degree in poultry science and agriculture from the University of Georgia

with a minor in business law and a minor in economics. He was employed for fifteen years

at Mayo Chemical as a director of sales and as a manager. Husband retired from Mayo and

began employment as a consultant for Dycho in 2002. Husband earns $1,250 per month in

his position with Dycho and works whatever hours he chooses. He also receives

reimbursement for his expenses.

Husband and Wife own a farm in Decatur, Tennessee (“the Farm”), which was

the parties’ marital home. The Farm consists of approximately one hundred and fifty acres.

Husband admitted that during a meeting with an attorney in December of 2005 for estate

planning purposes, Husband told the attorney that the Farm had a value of close to $1

million. Wife testified that Husband told her the Farm was worth over a million dollars. She

stated that during the estate planning meetings with the attorney, Husband told the attorney

that the Farm was worth “anywhere from a million and a half to two.” Husband remained

in the marital home on the Farm during the pendency of the divorce.

Husband and Wife also own a cabin and lot in Gatlinburg. The Gatlinburg

cabin was purchased by Husband approximately two years before the parties were married.

After the marriage, Husband conveyed a one-half undivided interest in the Gatlinburg

property to Wife. At trial, the parties stipulated that the Gatlinburg property was worth

$185,000 for both the cabin and the lot.

During the pendency of the divorce, the Trial Court ordered that the Farm be

listed for sale. When asked, Husband admitted that he was at the hearing where the Trial

Court ordered that the Farm be listed for sale, but that he had not listed the Farm for sale.

When asked why he had not complied with the Trial Court’s order, Husband stated: “I just

didn’t do it.” Husband admitted that he did not want to list the Farm for sale. Husband

admitted that the Trial Court also had ordered that the Gatlinburg property be listed for sale

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and that he had not done that either. When asked why he had not listed the Gatlinburg

property for sale, Husband stated: “Just negligence.... I just didn’t do it.”

During the marriage, Husband’s and Wife’s regular household expenses were

paid from their joint First Tennessee Bank account (“First Tennessee Account”). After Wife

filed for divorce, Husband took Wife’s name off the First Tennessee Account and put Son’s

name on it.

Husband inherited $688,000 during the marriage. This money was deposited

into Husband’s and Wife’s First Tennessee Account. Husband testified that he later moved

the money into an account with the Hartford Fund (“Hartford Account”) in Husband’s name

only. Husband stated:

I had to - - where the people mailed the check, I had to give them an account

number and account bank number so they could deposit it at First Tennessee

Bank. It was only in there just to say that the bank got it. I didn’t write any

checks, nothing off of it. It was immediately put in to investment.

Husband claimed that First Tennessee Bank moved the money into the Hartford Account

“immediately,” but when asked exactly when that was done, Husband stated: “I cannot tell

you. Don’t know.” Husband admitted that the inheritance money was commingled with

marital funds in the First Tennessee Account, and that he did not know how much money

was in the First Tennessee Account at the time of the $688,000 deposit. Husband claimed

there was no way to trace that to find out.

Husband testified that he used some of the money from his inheritance to

purchase two trucks for himself and one for his daughter, a Jaguar for Wife, a camper, and

various farm implements and stated: “I had to transfer some money from Hartford to my bank

account.” The camper cost approximately $32,000. When asked about moving the money

from the First Tennessee Account to the Hartford Account and then back to the First

Tennessee Account, Husband admitted that during his deposition he had stated: “I can’t tell

you how much all I put in at one time. I can’t tell you. I don’t know. I held out some of the

money. I can’t tell you.” Husband did not know how much of the money he had held out,

but Husband also stated that all of the inheritance money went into the Hartford Account.

Husband testified that the money was in the Hartford Account since 2003.

During his deposition, Husband stated: “I turned that money over to First Tennessee and it

took awhile to invest that money.” Husband stated:

I don’t know how quickly the money went out of the [First Tennessee]

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account. I cannot - - I don’t remember. It was 2002, and I don’t know how

much money I had in there. I don’t know how much money I took out and I

don’t know when Hartford took the money out or First Tennessee put it out

into Hartford. They invested that money in stages.

Husband admitted that while the inheritance money was in the First Tennessee

Account, he put his income into that account and paid marital expenses out of that account.

Husband agreed that he thought that it would be financial chaos to try to recreate when the

inheritance money came in to and went out of the First Tennessee Account.

Although he was asked for the First Tennessee Account and Hartford Account

records during discovery, Husband failed to produce either. Husband admitted that he threw

away the First Tennessee Account and Hartford Account records. He stated: “I didn’t need

them.” When asked why he did not spend time trying to recreate the details about the money

that went from the First Tennessee Account to the Hartford Account, Husband stated: “I had

no reason to.... Yeah. You know, I’m lost for words right now.” Husband admitted that he

worked with his attorney to prepare an exhibit documenting his 401(k) contributions going

back to 1977. Husband admitted that he would only have had to go back to 2002 or 2003 to

document the Hartford Account, and that he could have done the same for the Hartford

Account as he did for his 401(k). Husband also admitted that he had been asked during

discovery to produce the Hartford Account records.

Husband admitted that out of the money coming from the First Tennessee

Account he purchased a John Deere Gator for $9,000, a Grasshopper lawnmower for

$16,000, a hay rake for $850, a Grain-O-Vator, a New Holland feed mixer for $3,500, a 12-

foot mower for $2,000, a new barn for $65,000, a new watering system, a gooseneck trailer

for $32,000, a Filson head shoot for $2,400, a herd of cattle for $20,000, two bulls, a

swimming pool for $26,000, and closed in a front porch for $2,600. Husband stated that he

purchased these items over a period of several years.

Husband was unsure how much money was in the Hartford Account at the time

of trial, but he approximated it at $130,000. When asked if there had been $300,000 in the

Hartford Account at the time the divorce was filed, Husband stated: “I don’t remember.”

Husband claimed that the money in the Hartford Account went toward alimony while the

divorce was pending. When questioned further, Husband testified that he also paid some of

Wife’s bills from the Hartford Account.

Husband testified that there was $900 in the First Tennessee Account at the

time of trial. During his deposition Husband had stated that there was $12,000 in the First

Tennessee Account. When asked about the depletion of the First Tennessee Account,

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Husband stated: “I wrote two checks today and there won’t be any money in it.... I wrote

an $85 check for my water bill. I’ve got insurance to pay. I wrote close to $800 worth of

checks this morning I mailed.” When questioned further about the $12,000, Husband stated:

“That’s for alimony.”

Husband also admitted that he has a farm account, but claimed there was only

$100 in that account, and an alimony account, which had $500 in it. When asked why he had

a separate alimony account, Husband stated: “That’s the way I can keep up with it. I had

paid her already 30,000 this year in alimony.”

Husband admitted that he has taken $66,775.93 from the Hartford Account

since the divorce was filed. Husband admitted that the Trial Court had ordered that Wife was

to get $2,500 per month in alimony during the divorce and that Husband had paid through

June for twelve months for a total of $30,000. Husband admitted that the other $37,000 that

he had taken out of the Hartford Account had been for his own benefit. When asked,

Husband admitted that since the divorce was filed he has traveled to Florida twice with his

friends from the Highland Sportsman Club, but claimed that these trips were at no cost to

him.

Husband testified that he receives $1,728 per month in Social Security and

$1,250 per month from Dycho, and that he also takes $1,000 per month from the Hartford

Account. Husband admitted that he had been taking the $1,000 per month from the Hartford

Account prior to the parties separating to “help run the household.” Husband admitted that

his arrangement with Dycho could last forever, but claimed that he had decided to leave

Dycho and retire. Husband admitted that he had made this decision to leave Dycho because

of the divorce.

Wife was 59 years old at the time of trial. Wife went to school through the

eleventh grade and then took her GED test. She has no special training or certifications, no

vocational training, and is not proficient on computers. Wife testified that she worked as an

executive secretary for L.P. Muller & Company from 1975 until 1985. Wife then worked for

Henry Crumbliss Yarns as an executive secretary from 1985 until 1995. After that, Wife

started cleaning houses and working part-time for the Chattanooga Riverboat, which is

seasonal work. During the season, Wife worked for the Chattanooga Riverboat two days or

sixteen hours a week. Wife has had squamous cell cancer and has a sciatic nerve in her hip

that causes her some problems and pain when she works cleaning houses.

At the time of trial, Wife worked cleaning houses. She testified that she cleans

two houses on a regular basis. Wife cleans one of those houses every week for a monthly

income of $160. Wife cleans the other house every other week and makes $100 per month

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cleaning this house. Wife testified that she has passed out fliers in an attempt to gain more

clients for her house cleaning, but has not had any response to the fliers.

Wife also had sold Mary Kay cosmetics and Park Lane Jewelry. Wife

described these activities as a hobby. At the time of trial, Wife was not actively selling Mary

Kay and the Mary Kay company had designated Wife’s status as inactive. Wife testified that

she had not had any sales of Park Lane Jewelry in a couple of months and stated that she had

only had one Park Lane Jewelry party this year. Wife feels that she has exhausted her

sources for selling Park Lane Jewelry.

During the marriage, Wife did the housework, the laundry, the cooking, and

yard work. Wife purchased all of her clothes and also purchased clothes for Husband. Wife

stated: “I paid for my car. Then I paid for my medicine, my doctor bills. I bought everything

for the house, you know, the furniture, accessories. I bought Christmas gifts and, of course,

I bought everybody’s clothes and I bought groceries.” During the marriage, Wife received

$4,000 in an inheritance which she spent on furniture for the marital home.

Wife testified that Husband “was controlling with the finances.” Wife testified

that Husband would allow her to put gas in her car only once a month. Wife would give

plasma twice a week to earn money. When asked how much money she earned by donating

plasma, Wife stated: “Well, it started out $40. Now, it’s down to 30, but it was 20 each - -

20 twice a week.” Wife has been donating plasma for about ten years.

Wife has an account at SunTrust Bank and an account at Regions Bank. Wife

testified that at the time of trial there was $52 in the SunTrust account and $126 in the

Regions account. Wife deposits her alimony and the money she earns from housecleaning

into those accounts. Wife testified that she will be eligible to draw $796 per month in Social

Security when she turns 62. Wife has no retirement account.

After the trial, the Trial Court entered its Final Decree of Divorce on December

10, 2009 finding and holding, inter alia:

2. [Wife] and [Husband] have been married for twenty-six years. No children

were born of their marriage. At the time of trial, [Husband] was 75 years old,

and [Wife] was 59 years old.

3. The Court notes that [Husband’s] testimony lacked significant credibility

in several respects in that his testimony ranged from contradictions with his

earlier deposition testimony to forgetfulness concerning various relevant

matters.

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4. [Husband’s] education and health: [Husband] has a degree from the

University of Georgia. [Husband] is “semi-retired” (sic), but continuesto work

as a consultant for Dycho, earning $1,250.00 per month. In addition,

[Husband] is reimbursed for expenses up to $800.00 per month. [Husband]

also receives Social Security benefits in the amount of $1,728.00 per month,

and has routinely withdrawn at least $1,000.00 per month from an account

known as the “Hartford Fund”, discussed hereinafter. Although he indicated

during his depositions that his work with Dycho could last “forever” (sic),

Defendant changed his testimony at trial, claiming it was his intent to retire at

some point after the divorce. [Husband’s] physical condition is not unusual for

a man of his age; he appeared at trial to be in good health, but with some

cognitive difficulties. However, since the court had no evidence of

[Husband’s] everyday demeanor, there was no way to determine whether his

difficulties were due to the nervousness often seen in courtroom proceedings

or to some other problem.

5. [Wife’s] education and health: [Wife] has a high school education. [Wife]

has not maintained regular full-time employment outside the marital home in

many years. At the time of the filing of her divorce complaint, [Wife]

generated limited income to pay for “gas money and spending money” (sic)

from cleaning a few homes in the Chattanooga area, and from selling her blood

plasma on a regular basis. [Wife] has suffered from squamous cell carcinoma,

and has recurrent problems with her sciatic nerve.

6. Standard of living during the marriage: The proof at trial showed that

the parties enjoyed a relatively high standard of living during the marriage.

They owned (1) a home and adjacent farm on 150 acres (the “Farm Property”);

(2) a cabin and adjacent property in Gatlinburg (the “Gatlinburg Property”);

(3) a trailer in Tellico; (4) newer model vehicles; (5) personal property,

including farm equipment and implements, worth approximately two hundred

fifty thousand dollars [see, Master Asset List]; and (6) funds in financial

accounts which totaled, at the time of the divorce filing, approximately

$300,000. The parties’ indebtedness approximates $50,000.00, and is made

up of debt against [Husband’s] truck and the farm equipment, and credit card

debt of about $8,000.00 [see, Master Asset List, Liabilities].

* * *

8. [Wife’s] attorney fees: [Wife] is entitled to a judgment for attorney fees in

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this cause. This is supported by [Husband’s] behavior during the pendency of

this matter including: (1) his continued harassment of [Wife], which led to him

being held in contempt at the hearing on September 30, 2008; (2) his refusal

to comply with the prior order of the Court, of July 31, 2008, directing the

listing of the Farm Property for sale, because he “just didn’t want to” (sic); (3)

his refusal to acknowledge in the months prior to trial that the deed from

[Wife] to his son, Donald P. May, was erroneous and should be set aside; (4)

his assertion at his original deposition that [Wife] was not guilty of

inappropriate marital conduct, only to amend his answer the next day to assert

that [Wife] was guilty of such conduct, which he attempted to substantiate by

claiming that [Wife] is a lesbian; (5) his refusal to comply with the order of the

Court, of October 28, 2008, requiring him to account for his disposition of the

Hartford Fund; (6) his taking [Wife’s] name off of their joint checking account

following the divorce filing; and (7) his destruction of various records

concerning the Hartford Fund and First Tennessee accounts following the

divorce filing. The Court determines that [Wife] should be awarded her

attorneys’ fees from [Husband], in that she otherwise lacks sufficient funds to

pay such fees, and her ability to pay the fees is solely dependent upon her use

of the assets awarded her in the divorce. [Wife] has no independent assets

within which to satisfy such fees. Such determination is all the more

appropriate in this case, as [Husband’s] conduct necessitated the incurring of

significant and substantial attorneys’ fees which [Wife] should not have had

to bear, but for the harassing and contemptuous conduct by [Husband].

9. [Wife’s] claim for alimony: In considering [Wife’s] claim for alimony, the

Court finds that, primarily because of [Wife’s] age, minimal education, and

lack of significant employment for the last several years, [Wife] is entitled to

nonmodifiable transitional alimony. Upon consideration of the factors set out

under Tenn. Code Ann. § 36-5-121(h)(3)(i), the Court determines that [Wife]

is entitled to transitional alimony from [Husband], in the amount of $1,500.00

per month, until both the Farm and Gatlinburg properties are sold. It is the

Court’s hope that [Husband’s] continued alimony obligation to [Wife], until

both properties are sold, will not only provide [Wife] with necessary support

pending the sale of those assets, but also effectively motivate [Husband] and

his relatives to cooperate in the expeditious listing and sale of those assets. In

determining [Wife’s] need for alimony, the Court has considered, among other

factors, the primary considerations of [Wife’s] need and [Husband’s] ability

to pay. As discussed above, [Wife] has previously suffered from cancer and

has recurrent sciatic nerve problems.

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* * *

11. Commingling of financial assets: While [Husband] argues vigorously for

the proposition that most of the other assets involved in this proceeding are

separate property, [Wife’s] argument for commingling of assets is granted

significant weight by the Court. It became clear during the several days of

hearing in this matter that neither party, whether intentionally or not,

maintained a particularly firm grasp of the family finances. [Wife] testified at

trial that she had little to do with the finances of the parties because [Husband]

refused to allow her to do so. [Husband] testified that, after the petition for

divorce was filed, he did not keep banking or investment records and that the

parties’ finances were not subject to a clear division as separate and marital.

12. First Tennessee Bank account: Testimony from both parties at trial was

that [Wife] maintained a checking account in her own name, which she used

for household expenses as well as her personal needs and [Husband]

maintained a checking account in both parties’ names (the First Tennessee

Bank account), which the parties agreed [Wife] did not use. [Wife] testified

that she was not allowed to make use of the joint account. [Husband] did not

dispute this claim. The joint account was used for major purchases, household

expenses, family holidays and personal needs. It did not appear from

testimony or documentary evidence that there was any particular distinction

made between funds deposited in the joint account from employment income,

inheritance income, investment income, or, indeed, any other source of

income. Despite discovery requests and direction from the Court to provide

banking records from the First Tennessee Bank Account, [Husband] failed to

do so.

Following the inheritance by [Husband] and his sister of certain

property in Hamilton County that property was sold and [Husband’s] share of

the proceeds was deposited in the parties’ joint checking account at First

Tennessee Bank. At the time the proceeds were deposited into the joint

checking account, that account had on deposit marital funds from various

sources. Despite numerous requests from [Wife], [Husband] was unable to

produce relevant documents showing the amount and source of funds used to

establish the Hartford Fund. [Husband] indicated that he does not know how

much was in the First Tennessee joint account at the time of the deposit of the

proceeds from the sale of the inherited property, and stated in his depositions

and at trial that there was “no way” (sic) to find that out.

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Following the deposit of the inherited funds in the joint First Tennessee

account, the parties purchased, from that account, various vehicles and farm

equipment for themselves and their relatives. [Husband] indicated that such

purchases occurred over several years, and that the inherited money “stayed in

that [joint] account for awhile.” (sic) During that time, there were other funds

going in and out of the account on a routine basis, such as [Husband’s] income

and payment of the parties’ various expenses.

[Husband] testified that he did not maintain the statements from First

Tennessee Bank, and proceeded to throw away the statements for this account

following the divorce filing, because he “didn’t need them” (sic). He admitted

that he threw away “a bunch of records” (sic) after [Wife] filed for divorce,

because he “cleaned out his desk” (sic). Because the funds passing through the

First Tennessee Bank account are determined by the Court to be marital

property, on the theory that they have been so commingled that, by

[Husband’s] own admission, it would be “financial chaos” (sic) to attempt to

untangle them, any assets purchased with funds from the First Tennessee Bank

account are marital assets as well.

13. Establishment of the Hartford Fund account: Atsome point, [Husband]

removed a portion of the funds from the jointly-owned First Tennessee Bank

account to establish the Hartford Fund, but was unable to state how much

money was initially used to set up the Fund, only that he held out “some of the

money” (sic) from the joint account. [Husband] reiterated that he has no idea

what money he took out of the joint First Tennessee account to open the

Hartford Fund, and acknowledged that he left “quite a bit” (sic) of money in

the First Tennessee account to pay for, among other things, various items of

personal property. [Husband] further indicated that it “took a while” (sic) to

open the Hartford account. He also stated that it was impossible to trace the

money that came in and out of the First Tennessee account, in that it would be

“absolute financial chaos” (sic). In addition to the apparent lack of any effort

by [Husband] to specifically trace the funds that came into the First Tennessee

account and Hartford Fund, there was no credible testimony at trial that the

Hartford Fund was to be [Husband’s] separate property. Both parties testified

that the monthly withdrawals made from the Hartford Fund were used to pay

their routine expenses. Taking all of this together, the Court finds that the

Hartford Fund account is a marital asset.

(notations ‘(sic)’ appear in original). In the Final Decree of Divorce, the Trial Court also

found and held that Son’s claim to an interest in the Farm was based upon an erroneous deed,

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which the Trial Court set aside and held for naught.

Husband filed a motion to alter or amend or for a new trial. After a hearing,

the Trial Court entered its order on March 25, 2010 denying Husband’s motion, in part, and

granting it, in part. Specifically, and as relevant to this appeal, the March 25, 2010 order

awarded Wife a judgment for $25,000 in attorney’s fees against Husband, and a judgment

of $4,083.50 for attorney’s fees against Son.

Wife filed a motion to alter or amend the March 25, 2010 order. After a

hearing, the Trial Court granted Wife’s motion to alter or amend, in part, and reserved the

issue of attorney’s fees. Wife subsequently filed an Emergency Petition for Contempt

alleging, in part, that Husband was failing to comply with the Trial Court’s orders. The Trial

Court held a hearing on Wife’s Emergency Petition for Contempt and entered its order

September 16, 2010 nunc pro tunc to September 3, 2010 finding and holding, inter alia, that

Wife should be and was awarded a judgment against Husband “for all attorneys fees and

related expenses incurred by her in the divorce proceeding, through December 21, 2009, in

the total amount of $63,474.34, and that [Wife] shall have and recover judgment against

[Husband] for her discretionary costs in the divorce proceeding, in the total amount of

$2,965.77.” Husband and Son appeal to this Court.

Discussion

Although not stated exactly as such, Husband and Son raise five issues on

appeal: 1) whether the Trial Court erred in classifying certain property as marital property;

2) whether the Trial Court erred in dividing the marital property; 3) whether the Trial Court

erred in awarding Wife alimony; 4) whether the Trial Court erred in awarding Wife a

judgment for attorney’s fees against Husband; and, 5) whether the Trial Court erred in

awarding Wife a judgment for attorney’s fees against Son. Wife requests an award of

attorney’s fees on appeal.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

A trial court’s conclusions of law are subject to a de novo review with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.

2001).

We first consider whether the Trial Court erred in classifying certain property

as marital property. Specifically, Husband contests the Trial Court’s classification and

division as marital property of the money in the Hartford Account, which is what remains of

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the $688,000 that Husband inherited during the marriage. As our Supreme Court has

1

explained:

Tennessee is a “dual property” state because its domestic relations law

recognizes both “marital property” and “separate property.” See generally

Tenn. Code Ann. § 36-4-121; Eldridge v. Eldridge, 137 S.W.3d 1, 12 (Tenn.

Ct. App. 2002). When a married couple seeks a divorce, the “marital

property” must be divided equitably between them, without regard to fault on

the part of either party. Tenn. Code Ann. § 36-4-121(a)(1). “Separate

property” is not part of the marital estate and is therefore not subject to

division. See Cutsinger [v. Cutsinger], 917 S.W.2d [238, 241 (Tenn. Ct. App.

1995)]. Thus, it is imperative that the parties, the trial court, or both identify

all of the assets possessed by the divorcing parties as either marital or separate

so that a proper division can be accomplished.

Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009).

As pertinent to the issue now before us, Tenn. Code Ann. § 36-4-121 provides

that by definition “separate property” includes: “Property acquired by a spouse at any time

by gift, bequest, devise or descent; ....” Tenn. Code Ann. § 36-4-121 (b)(2)(D) (2010).

The inquiry does not end here, however, as separate property may in certain circumstances

become marital. As our Supreme Court explained in Snodgrass:

[S]eparate property may be deemed marital by operation of law under theories

of commingling or transmutation. Langschmidt v. Langschmidt, 81 S.W.3d

741, 747 (Tenn. 2002).

* * *

This Court addressed the related doctrines of commingling and

transmutation for the first time in Langschmidt and adopted the following

explanation:

Husband also asserts in his brief on appeal that the Trial Court erred in classifying some of the farm 1

equipment purchased with the $688,000 as marital property. As discussed above, however, the evidence

shows that the $688,000 became marital property through commingling with marital funds, which would

result in the items purchased with this money also being classified as marital property. Furthermore,

Husband never points to any specific items of farm equipment that he contests were improperly classified,

but rather simply requests that this Court “give consideration to some or all of the farm equipment, which

was purchased with those funds, being declared his separate property ....” 

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[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 become 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 also 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.

81 S.W.3d at 747 (quoting 2 Homer H. Clark, The Law of Domestic Relations

in the United States § 16.2 at 185 (2d ed. 1987)).

Snodgrass, 295 S.W.3d at 247, 256.

With regard to this issue, the Trial Court specifically found and held that: “the

funds passing through the First Tennessee Bank account are determined by the Court to be

marital property, on the theory that they have been so commingled that, by [Husband’s] own

admission, it would be “financial chaos” (sic) to attempt to untangle them ....” The evidence

in the record on appeal does not preponderate against the Trial Court’s findings relative to

this issue.

The evidence shows that Husband’s inheritance was put into the parties’ joint

First Tennessee Account where it was commingled with marital funds. The evidence further

shows that although some of this money was moved into the Hartford Account, there was no

clear evidence of how much of the money was moved, or when it was moved. Furthermore,

as the Trial Court found, there was no clear evidence showing that the Hartford Account was

intended to remain as Husband’s separate property. The evidence shows that Husband’s

inheritance was unable to be segregated or traced to its product after it was deposited into the

First Tennessee Account. Husband himself testified that the money could not be traced, and

he agreed that it would be financial chaos to attempt to do so. A rebuttable presumption of

a gift to the marital estate was created. Husband failed to rebut the presumption. We find

no error in the Trial Court’s classification of the Hartford Account as marital property.

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We next consider whether the Trial Court erred in dividing the marital

property. As our Supreme Court has explained:

This Court gives great weight to the decisions of the trial court in

dividing marital assets and “we are disinclined to disturb the trial court’s

decision unless the distribution lacks proper evidentiary support or results in

some error of law or misapplication ofstatutory requirements and procedures.”

Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such,

when dealing with the trial court’s findings of fact, we review the record de

novo with a presumption of correctness, and we must honor those findings

unless there is evidence which preponderates to the contrary. Tenn R. App. P.

13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

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, this Court 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)). The trial court’s

conclusions of law, however, are accorded no presumption of correctness.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

* * *

In a proceeding for divorce or legal separation, the trial court is authorized,

prior to determining the support and maintenance of one party by the other, 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) (2005). The trial court is empowered to do what

is reasonable under the circumstances and has broad discretion in the equitable

division of the marital estate. See Flannary v. Flannary, 121 S.W.3d 647, 650

(Tenn. 2003). The division of assets is not a mechanical process and trial

courts are afforded considerable discretion. Manis v. Manis, 49 S.W.3d 295,

306 (Tenn. Ct. App. 2001).

Keyt v. Keyt, 244 S.W3d 321, 327-28 (Tenn. 2007) (footnote omitted).

Further, our Supreme Court has instructed:

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[M]arital property must be divided equitably between the parties based on the

relevant factors enumerated in Tennessee Code Annotated section 36-4-121(c)

without regard to fault on the part of either party. Tenn. Code Ann. §

36-4-121(a)(1). Section 36-4-121(a)(1) requires an equitable division of

marital property, not an equal division. Robertson v. Robertson, 76 S.W.3d

337, 341 (Tenn. 2002).

Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010).

Tennessee Code Annotated § 36-4-121 (c) provides:

(c) In making equitable division of marital property, the court shall consider

all relevant factors including:

(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;

(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) (2010).

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Husband argues in his brief on appeal that the fifth factor contained in Tenn.

Code Ann. § 36-4-121 (c) “weighs heavily in favor of [Husband].” Husband states that “but

for a $688,000 inheritance received by Husband, and, except for the fact Husband had a

substantial 401(k) retirement account, at the time the parties married, the parties would in no

way have anywhere near the amount of assets which were divided by the court.”

We disagree with Husband’s assertion that factor five should be relied upon

any more heavily than the other relevant factors. All relevant factors must be considered

when making an equitable division of marital property. The record reveals that the Trial

Court did consider all relevant factors. Furthermore, the evidence in the record on appeal

does not support Husband’s assertion that the fifth factor weighs heavily in his favor. Rather,

the evidence shows that Wife fulfilled her role as a homemaker and her contribution shall be

given the same weight as Husband’s contribution.

Husband asserts that the evidence shows that “while both parties worked at

different times during the marriage, that Wife’sfunds were always kept as her separate funds,

in her own bank accounts.” We disagree. Although Husband made this assertion at trial, the

evidence shows that Wife used her own money, including her inheritance received during the

marriage and the money she received from selling her blood plasma, to purchase, among

other things, gas, items for the marital home, and gifts for Husband. Furthermore, the Trial

Court specifically found Husband’s testimony “lacked significant credibility in several

respects ...,” and, we give great deference to the Trial Court’s findings with regard to

credibility.

In his brief on appeal, Husband also argues:

if the court finds that all the property found by the trial court is marital

property, then [Husband] would urge this court to grant him 65% of the

monies received on the sale of the above-listed property, and grant Wife 35%

of the same. Such a ruling would more fairly adjust the equities in this matter.

In essence, Husband is requesting that this Court tweak the Trial Court’s distribution of

marital property. We decline to do so. We find no error in the Trial Court’s distribution of

the marital property, and we affirm on this issue.

Next, we consider whether the Trial Court erred in awarding Wife alimony.

As pertinent to this issue, our Supreme Court has explained:

For well over a century, Tennessee law has recognized that trial courts

should be accorded wide discretion in determining matters of spousal support.

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See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846) (“Upon a

divorce . . . the wife is entitled to a fair portion of her husband’s estate for her

support, and the amount thus to be appropriated is a matter within the legal

discretion of the chancellor . . . .”). This well-established principle still holds

true today, with this Court repeatedly and recently observing that trial courts

have broad discretion to determine whether spousal support is needed and, if

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

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

465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn.

2000).

Equally well-established is the proposition that a trial court’s decision

regarding spousal support is factually driven and involves the careful

balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct.

App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76

S.W.3d 337, 340-41 (Tenn. 2002). As a result, “[a]ppellate courts are

generally disinclined to second-guess a trial judge’sspousalsupport decision.”

Kinard, 986 S.W.2d at 234. Rather, “[t]he 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, 76 S.W.3d at 343. 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 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 a 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.

* * *

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[T]ransitional alimony, is appropriate when a court finds that rehabilitation is

not required but that the economically disadvantaged spouse needs financial

assistance in adjusting to the economic consequences of the divorce. Tenn.

Code Ann. § 36-5-121(d)(4), (g)(1); Riggs, 250 S.W.3d at 456 n.5. Simply

put, this type of alimony “aid[s] the person in the transition to the status of a

single person.” Mills v. Mills, No. M2009-02474-COA-R3-CV, 2010 Tenn.

App. LEXIS 501, 2010 WL 3059170, at *5 (Tenn. Ct. App. Aug. 4, 2010); see

also Montgomery v. Silberman, No. M2009-00853-COA-R3-CV, 2009 Tenn.

App. LEXIS 787, 2009 WL 4113669, at *2 (Tenn. Ct. App. Nov. 24, 2009)

(affirming trial court’s award of transitional alimony to wife “to bridge the

gap, so to speak, between her married life and single life”); Engesser v.

Engesser, 42 So. 3d 249, 251 (Fl. Dist. Ct. App. 2010) (en banc) (describing

transitional alimony as “[b]ridge-the-gap alimony” designed to “smooth the

transition of a spouse from married to single life”).

Gonsewski v. Gonsewski, ___ S.W.3d ____, No. M2009-00894-SC-R11-CV, 2011 Tenn.

LEXIS 872, at **7-10, *19 (Tenn. 2011).

The Trial Court awarded Wife transitional alimony in the amount of $1,500.00

per month “until both the Farm and Gatlinburg properties are sold.” The Trial Court

considered the relevant factors contained in Tenn. Code Ann. § 36-5-121 and made specific

factual findings. Without again reiterating all of these findings, we note that the evidence

in the record does not preponderate against the Trial Court’s findings, particularly the

findings that Wife has shown a need and that Husband has the ability to pay.

Furthermore, we note that the Trial Court specifically tied the end date of this

alimony to the sale of the Farm and Gatlinburg properties, when Wife would receive her

share of these marital assets. As the evidence in the record clearly shows that Husband had

previously been ordered to list these properties for sale and had deliberately refused to

comply with the Trial Court’s orders, it is clear that Husband has some measure of control

over the duration of the alimony award. If Husband continues to refuse to list the properties

for sale, then Husband will continue to be required to pay this alimony. We find no error in

the award of alimony, and we affirm on this issue.

We next consider whether the Trial Court erred in awarding Wife a judgment

for attorney’s fees against Husband. In Gonsewski, our Supreme Court also instructed:

It is well-settled that an award of attorney’s fees in a divorce case

constitutes alimony in solido. See Tenn. Code Ann. § 36-5-121 (h)(1)

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(“alimony in solido may include attorney fees, where appropriate”); Herrera

v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). The decision whether

to award attorney’s fees is within the sound discretion of the trial court.

Crabtree, 16 S.W.3d at 361; Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn.

Ct. App. 1995). As with any alimony award, in deciding whether to award

attorney’s fees as alimony in solido, the trial court should consider the factors

enumerated in Tennessee Code Annotated section 36-5-121 (i). 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, see

Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992), or the

spouse would be required to deplete his or her resources in order to pay them,

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

where the spouse seeking such an award has demonstrated that he or she is

financially unable to procure counsel, and where the other spouse has the

ability to pay, the court may properly grant an award of attorney’s fees as

alimony. See id. at 185.

Gonsewski, ____ S.W.3d at ____, 2011 Tenn. LEXIS 872, at **32-33.

The Trial Court made specific findings with regard to the award of attorney’s

fees against Husband. Specifically, the Trial Court found that Wife: “otherwise lacks

sufficient funds to pay such fees, and her ability to pay the fees is solely dependant upon her

use of the assets awarded her in the divorce. [Wife] has no independent assets within which

to satisfy such fees.” The evidence does not preponderate against these findings.

Furthermore, the Trial Court found that: “[Husband’s] conduct necessitate the incurring of

significant and substantial attorneys’ fees which [Wife] should not have had to bear, but for

the harassing and contemptuous conduct by [Husband].” The record contains much support

for this particular finding. We find no abuse of discretion in the award to Wife of attorney’s

fees from Husband in the amount of $63,474.34 and costs in the amount of $2,965.77.

Next, we consider the issue of whether the Trial Court erred in awarding Wife

a judgment for attorney’s fees against Son. In Cracker Barrel Old Country Store, Inc. v.

Epperson, our Supreme Court explained:

Tennessee, like most jurisdictions, adheres to the “American rule” for

award of attorney fees. John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d

528, 534 (Tenn. 1998); Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d

336, 338 (Tenn. 1985). Under the American rule, a party in a civil action may

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recover attorney fees only if: (1) a contractual or statutory provision creates a

right to recover attorney fees; or (2) some other recognized exception to the

American rule applies, allowing for recovery of such fees in a particular case.

Taylor, 158 S.W.3d at 359; John Kohl, 977 S.W.2d at 534.

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009)

(footnote omitted).

In the case now before us, no contractual or statutory provision exists which

would allow Wife to recover an award of attorney’s fees against Son, nor is there a

recognized exception applicable to this situation. The fact that Son may have been extremely

and unnecessarily uncooperative during the pendency of this suit, and the fact that Wife

ultimately prevailed against Son simply are insufficient bases for awarding Wife attorney’s

fees against Son. As such, we vacate the award to Wife of a judgment against Son in the

amount of $4,083.50 for attorney’s fees.

Finally, we address Wife’s request for an award of attorney’s fees on appeal.

In the exercise of our discretion in light of all relevant factors, we award Wife her attorney’s

fees on appeal. We remand this case to the Trial Court for a determination of the appropriate

amount of such fees.

Conclusion

The judgment of the Trial Court is vacated asto the award to Wife of attorney’s

fees against Son. The remainder of the Trial Court’s judgment is affirmed. This cause is

remanded to the Trial Court for further proceedings consistent with this Opinion, and for

collection of the costs below. The costs on appeal are assessed against the Appellant, Donald

B. May, and his surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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