IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 11, 2020 Session

JANET LYNNETTE MCCORMICK v. DONNY JOE MCCORMICK

Appeal from the Chancery Court for Henderson County

No. 23552 James F. Butler, Chancellor

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No. W2019-00647-COA-R3-CV

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Wife appeals the trial court’s judgment, arguing that the trial court erred in treating an 

obligation contained in the parties’ marital dissolution agreement as an alimony 

obligation rather than a division of marital debt that was extinguished upon the 

foreclosure of the subject property. In the alternative, Wife contends that the trial court 

erred in not further reducing or eliminating her alimony obligation. We conclude that 

Wife waived her arguments concerning the proper classification of this obligation as a 

marital debt by not raising this argument in the trial court. As to the trial court’s decision 

regarding modification of Wife’s alimony, we vacate the trial court’s ruling and remand 

for an order fully compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure. 

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

in Part; and Vacated in Part

J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which W. NEAL 

MCBRAYER and CARMA DENNIS MCGEE, JJ., joined.

Donald Capparella and Kimberly Macdonald, Nashville, Tennessee, for the appellant, 

Janet Lynnette McCormick.

Jack S. Hinson and Samuel W. Hinson, Lexington, Tennessee, for the appellee, Donny 

Joe McCormick.

OPINION

I. BACKGROUND

Plaintiff/Appellant Janet Lynnette McCormick (“Wife”) and Defendant/Appellee 

Donny Joe McCormick (“Husband”) were divorced in 2012. Pursuant to the marital 

dissolution agreement (“MDA”) entered into by the parties at the time of divorce, Wife 

was required to

03/04/2020
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pay alimony to Husband on the following terms: Wife shall pay to 

Husband, directly, in advance, as alimony in futuro: the monthly mortgage 

payment, real estate taxes, and homeowner’s insurance on the property 

located at 8680 Highway 100, Scotts Hill, Henderson County, Tennessee. 

All payments shall be paid in a timely manner. Any penalty or interest 

incurred due to late or delinquent payment shall be the sole responsibility of 

Wife. 

Wife was also ordered to assume the indebtedness of all the marital property, including 

the marital home, as well as any Internal Revenue Service (“IRS”) debts. 

On September 13, 2017, Husband filed a petition for contempt against Wife in the 

Henderson County Chancery Court (“the trial court”). Therein, Husband alleged that 

Wife was earning $116,000.00 per year, but that she had never paid any alimony 

payments as required by the above provision, resulting in an approximately $66,000.00 

arrearage. As such, Husband asked that Wife be held in contempt and that he be awarded 

attorney’s fees.

On November 13, 2017, Wife filed an answer admitting that she had been ordered 

to pay the mortgage under the MDA but denying that an arrearage existed. A few months 

later, on February 20, 2018, Wife filed a petition seeking a modification of what she 

characterized as “alimony in solido.” Therein, Wife alleged that at the time of the 

divorce, she was earning approximately $400,000.00, while her income had undisputedly 

decreased to only $116,000.00. Wife further noted that she was solely responsible for the 

parties’ debts and the expenses related to the minor children. Moreover, Wife averred that 

the property for which she was ordered to pay the mortgage was being foreclosed on and 

that Husband’s expenses had reduced. As such, Wife submitted that a substantial and 

material change in circumstances occurred to either terminate or substantially reduce her 

alimony obligation. In the conclusion of her petition, Wife specifically asked the trial 

court to “modif[y] the existing alimony in futuro obligation set out” in the parties’ MDA 

and that she be awarded attorney’s fees. 

Husband answered the petition on March 14, 2018. Therein, Husband admitted 

that the property had been foreclosed but alleged that he had acquired substitute housing 

that was below the marital standard of living and that he needed the alimony to secure 

proper housing. 

A hearing on the pending petitions occurred on October 18, 2018. According to a 

later filed Statement of the Evidence, the parties agreed following the divorce that Wife 

would pay the mortgage and expenses directly, rather than to Husband. Husband was 

awarded a life estate in the property. Eventually, however, Wife fell behind on the 

payments and filed bankruptcy; Husband filed no claim against Wife in the bankruptcy 
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action. According to Husband, however, the bankruptcy action was dismissed. 

Eventually, the home was foreclosed. Husband left the property on February 23, 2018. 

Wife testified that at the time of the divorce she was earning approximately $400,000.00 

per year, but that she suffered a nearly $300,000.00 reduction in income following the 

divorce. Wife also owed approximately $180,000.00, plus a penalty, to the IRS, which 

debt Wife testified she had not been able to service since 2017. 

Around the time of the divorce, Husband suffered a stroke and became disabled. 

His only income was $1,466.00 per month in disability benefits. At the time of trial, 

Husband was living in a mobile home in which he did not pay rent. Following the 

hearing, on October 24, 2018, Husband filed his affidavit of income and expenses 

indicating a deficit of $931.00 per month. On November 13, 2018, Wife filed an affidavit 

of income and expenses demonstrating a monthly deficit of $45.46.

The trial court issued a letter opinion on or about January 25, 2019. A written 

order incorporating the trial court’s letter ruling was entered on March 21, 2019. Therein, 

the trial court ruled that the MDA imposed an alimony in futuro obligation on Wife, that 

Wife was in contempt for non-payment, and that Husband was entitled to attorney’s fees. 

The trial court then noted that the parties stipulated that the amount due originally under

MDA was $1,623.33 per month. After considering both parties income and expenses, the 

trial court reduced Husband’s expenses by $88.00 and Wife’s by $822.00, finding that 

Wife’s credit card expenses were “probably” duplicative of other claimed expenses. 

Based on these expenses, the trial court found that Wife had the ability to pay $771.54 

per month and Husband had a need of $843.00 per month. The trial court therefore 

awarded Husband alimony of $700.00 per month, plus $200.00 per month in arrearages. 

Finally, the trial court awarded Husband $3,500.00 in attorney’s fees. 

Wife thereafter timely appealed to this Court. On June 12, 2019, Wife submitted a 

Statement of the Evidence. No objection was lodged as to this statement, and it was 

approved by virtue of the trial court’s silence. See Tenn. R. App. P. 24(f) (stating that 

when the trial court does not act “as soon as practicable after the filing thereof or after the 

expiration of the 15-day period for objections by appellee . . . the transcript or statement 

of the evidence . . . shall be deemed to have been approved except in cases where such 

approval did not occur by reason of the death or inability to act of the judge”). 

II. ISSUES PRESENTED

Wife raises the following issues in this appeal, which are taken from her brief:1

1. Whether the trial court erred as a matter of law in interpreting the 

parties’ marital dissolution agreement as containing an alimony award 

 

1 Wife was represented by different counsel in the trial court than on appeal. 
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when (1) the marital home payments labeled as “alimony in futuro”—

consisting of the mortgage, property taxes, and home insurance—do not 

satisfy any form of alimony recognized in Tennessee; (2) federal tax law 

precludes the classification of the marital home payments as alimony 

because the payments were not “to” or “on behalf of” the recipient 

spouse; and (3) the marital home payments represent the assignment of 

a debt?

2. Whether the trial court erred as a matter of law in modifying the debt of 

the marital home payments when (1) the bank previously foreclosed on 

the marital home; (2) Tennessee law does not permit a property 

assignment to be later modified; and (3) any “modification” of the debt 

assignment would result in a new alimony obligation created 

approximately seven years after the entry of the final divorce decree?

3. In the alternative, whether the trial court abused its discretion by failing 

to apply the required statutory analysis under Tenn. Code Ann. § 36-5-

121(i) and arbitrarily applying the facts to the law, resulting in an 

alimony obligation beyond the means of the payor spouse?

III. DISCUSSION

A.

Wife raises several issues in this case concerning the trial court’s ruling that the 

obligation contained in the MDA was alimony in futuro rather than a property division. 

In particular, Wife argues that the trial court erred in classifying the mortgage payments 

due under the MDA as alimony, as the payments do not fit squarely within any of the 

four recognized types of alimony and the label given to the payments under the MDA is 

not dispositive. Wife further contends that the trial court erred in failing to consider 

federal tax law and other federal precedent in ruling that this obligation constituted 

alimony rather than an allocation of marital debt. According to Wife, when Wife’s 

obligation is considered through the proper lens, it is clear that her obligation to pay for 

the mortgage on the marital home extinguished when the home was foreclosed. Finally, 

Wife asserts that the trial court erred in awarding Husband alimony of $700.00 per month 

when the MDA contained no alimony obligation that could be modified. 

Husband counters that these arguments were never raised in the trial court and are 

therefore waived on appeal. Rule 13(b) of the Tennessee Rules of Appellate Procedure 

provides that appellate “[r]eview generally will extend only to those issues presented for 

review.” Based on this rule, the Tennessee Supreme Court very recently reiterated that 

“‘[a]ppellate review generally is limited to issues that a party properly preserves for 

review by raising the issues in the trial court and on appeal.’” State v. Vance, No. 

M2017-01037-SC-R11-CD, --- S.W.3d ---, 2020 WL 896735, at *17 (Tenn. Feb. 25, 

2020) (quoting State v. Minor, 546 S.W.3d 59, 65 (Tenn. 2018) (citing Tenn. R. App. P. 
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13(b)). As such, “[i]t has long been the general rule that questions not raised in the trial 

court will not be entertained on appeal[.]” Lawrence v. Stanford, 655 S.W.2d 927, 929 

(Tenn. 1983). Thus, both “issues and arguments not raised or asserted in the trial court 

may not be raised for the first time on appeal.” Dog House Investments, LLC v. Teal 

Properties, Inc., 448 S.W.3d 905, 915 (Tenn. Ct. App. 2014) (citing Barnes v. Barnes, 

193 S.W.3d 495, 501 (Tenn. 2006)); see also Powell v. Cmty. Health Sys., Inc., 312 

S.W.3d 496, 511 (Tenn. 2010) (“It is axiomatic that parties will not be permitted to raise 

issues on appeal that they did not first raise in the trial court.”). Accordingly, issues raised 

in this manner are waived. Fowler v. City of Memphis, 514 S.W.3d 732, 743 (Tenn. Ct. 

App. 2016). 

Although we agree that Husband, as the party invoking waiver, has the burden to 

show its application, we must conclude that this burden is met in this case. See Fayne v. 

Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). Here, the technical record consists of a slim 

forty-one pages. The only pleadings or written documents filed by Wife prior to trial 

were her answer to the contempt petition, her petition to “modify alimony in solido,” and

her affidavit of income and expenses. Nowhere in any of these filings does Wife make 

any argument even remotely raising the contention that the mortgage payments obligation 

contained in the MDA constitutes a division of marital property or debt, rather than an 

award of alimony. Instead, Wife’s pleadings treat this issue as a modifiable type of 

alimony. A periodic payment that constitutes a division of marital property is, of course, 

nonmodifiable. See Towner v. Towner, 858 S.W.2d 888, 892 (Tenn. 1993) (holding that 

a periodic payment was a division of marital property and therefore not subject to 

modification).2 Moreover, Wife’s Statement of the Evidence does not indicate that this 

argument was raised orally during the hearing on the pending petitions. 

This is more than simply failing to place the correct label on Wife’s argument. Cf.

Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 144 (Tenn. 2001) (holding that using the 

incorrect label does not result in waiver when the contents of the argument were properly

made in the trial court). Here, Wife never asked the trial court to interpret the obligation 

in the MDA as a division of marital property; rather, she herself asserted all along that it 

constituted a type of alimony and that it was subject to modification based on changed 

circumstances. Moreover, the record that Wife has presented to this Court gives no 

indication that Wife presented any federal law to the trial court or asked the trial court to 

interpret the MDA pursuant to federal tax law. 

Unfortunately for Wife, this situation involves the convergence of two well-settled 

principles of Tennessee jurisprudence. First, it is not the court’s duty to research or 

 

2 Wife characterized the alimony as in solido in her request for modification. Alimony in solido is 

also not subject to modification. See Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn. 2001) (holding that 

unlike alimony in solido, alimony in futuro is subject to modification). The trial court, however, found 

that the modification of alimony request was proper because the alimony constituted an alimony in futuro 

obligation, which Husband has not raised as an error on appeal. 
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construct an argument for a litigant. See Sneed v. Bd. of Prof’l Responsibility of Sup. 

Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate, 

to research or construct a litigant’s case or arguments for him or her, and where a party 

fails to develop an argument in support of his or her contention or merely constructs a 

skeletal argument, the issue is waived.”). Second, this Court “functions as an errorcorrecting intermediate appellate court.” Mosley v. State, 475 S.W.3d 767, 774 (Tenn. Ct. 

App. 2015) (citation omitted). As such, our purpose is generally to correct errors 

committed by the trial court. Id. (“Because Mr. Mosley was entitled to file an amended 

complaint without leave of court, there is simply no error committed by the Commission 

that this Court can correct.”). Here, Wife simply did not seek an interpretation of the 

MDA obligation as a division of marital debt rather than an award of alimony; in fact, 

Wife did not ask the trial court to interpret the MDA at all. Thus, the trial court was under 

no duty “fill in the gaps” of Wife’s argument by construing her actual request to modify 

alimony as in fact a request to interpret the obligation as an allocation of marital debt. 

Brooks v. Bd. of Prof’l Responsibility, 578 S.W.3d 421, 431 (Tenn. 2019) (Lee, J., 

concurring in part and not joining in part) (“A party, not the Court, should identify the 

issues and provide adequate legal authority and argument. When a party fails to do so, it 

is not the Court’s role to step in and fill in the gaps.”) (citation omitted); cf. Vance, 2020 

WL 896735, at *18 (“A trial court cannot evaluate an objection that is not made.”). Nor 

was the trial court required to research the impact of federal law on Wife’s illusory 

request. And having not been presented with any proper request to interpret the MDA in 

this manner, we cannot assign error to the trial court’s failure to do so. Wife’s arguments 

that the trial court failed to interpret her payments under the MDA as obligations related 

to the division of marital property, under both Tennessee and federal law, are therefore 

waived. 

As a final attempt to save this argument, Wife asks this Court to exercise our 

discretion to consider Wife’s arguments notwithstanding her waiver. Under Rule 13(b) of 

the Tennessee Rules of Appellate Procedure, this Court may exercise its discretion to 

consider issues not properly raised by the parties in order to prevent needless litigation, 

prevent injury to the interests of the public, and to prevent prejudice to the judicial 

process. See also Tenn. R. App. P. 2 (allowing the suspension of the rules of appellate 

procedure upon a showing of good cause). Here, the issue involves a private obligation 

agreed to by two parties, both of whom were represented in the trial court. As such, 

neither the interests of justice nor prejudice to the judicial process is implicated. Wife 

contends, however, that resolution of her issue now would prevent needless future 

litigation. 

Use of Rule 13(b) to consider previously waived issues is rare. See Bell v. Todd, 

206 S.W.3d 86, 91 (Tenn. Ct. App. 2005); In re C.R.B., No. M2003-00345-COA-R3-JV, 

2003 WL 22680911, at *3 (Tenn. Ct. App. Nov. 13, 2003). As such, we have been 

directed to exercise our discretion under Rule 13(b) “sparingly.” State v. Bledsoe, 226 

S.W.3d 349, 354 (Tenn. 2007) (citing Tenn. R. App. P. 13(b) advisory comm’n cmt). 
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Here, while future litigation to modify Wife’s alimony obligation may occur, nothing in 

the record indicates that future litigation as to the interpretation of the MDA is certain or 

would be appropriate. Under these circumstances, we decline to invoke Rule 13(b) to 

allow Wife to raise previously unlitigated arguments in this court simply because future 

proceedings on this issue have the possibility to occur. The trial court’s decision to treat 

Wife’s obligation in the MDA as alimony is therefore affirmed.3

B.

Wife raises an alternative argument in this case: that the trial court abused its 

discretion when it modified Wife’s alimony by not further reducing the alimony award or 

eliminating it entirely. To modify an alimony award, there must be a substantial and 

material change in circumstances. Tenn. Code Ann. § 36-5-121(a). As we have 

explained, 

The party seeking modification bears the burden of proving that a 

substantial and material change in circumstances has occurred. Freeman v.

Freeman, 147 S.W.3d 234, 239 (Tenn. Ct. App. 2003) (citing Seal v. Seal, 

802 S.W.2d 617, 620 (Tenn. Ct. App. 1990)). Once a substantial and 

material change in circumstances has been established, the trial court is 

under no duty to modify the award; the party seeking modification must 

demonstrate that a modification is warranted. Bogan [v. Bogan], 60 S.W.3d 

[721,] 730 [(Tenn. 2001)]. In “assessing the appropriate amount of 

modification, if any, in the obligor’s support payments, the trial court 

should consider the factors contained in” Tennessee Code Annotated § 36-

5-121(i) “to the extent that they may be relevant to the inquiry.” Id. (citing 

Seal, 802 S.W.2d at 620; Threadgill v. Threadgill, 740 S.W.2d 419, 422–

23 (Tenn. Ct. App. 1987)). 

Wiser v. Wiser, 339 S.W.3d 1, 12 (Tenn. Ct. App. 2010) (footnote omitted). As such, 

“modification of a spousal support award is ‘factually driven and calls for a careful 

balancing of numerous factors.’” Id. at 727 (quoting Cranford v. Cranford, 772 S.W.2d 

48, 50 (Tenn. Ct. App. 1989)). The trial court’s decision on whether to modify spousal 

support is therefore not disturbed on appeal in the absence of an abuse of discretion. 

Goodman v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App. 1999). 

The trial court in this case found a substantial and material change in 

circumstances justifying a modification of alimony. Neither party appears to take issue 

with that finding. Wife does take issue with the trial court’s finding that she had the 

ability to pay $700.00 per month in support. In particular, Wife points to the trial court’s 

 

3 We therefore express no opinion as to the appropriate classification of the subject obligation had

this issue been properly raised in the trial court. 
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rather minimal findings concerning her expenses. Husband counters that the alimony 

award was proper because the trial court properly considered the most important factor: 

his need for alimony. On this point, we must agree with Wife.

As an initial matter, we note that while the need of the disadvantaged spouse is 

often the single most important factor in an initial alimony award, this is not the case in 

the context of a modification of alimony. Rather, our supreme court has explained: 

When addressing an initial award of support, the need of the spouse must 

necessarily be the most important factor to consider, because alimony is 

primarily intended to provide some minimal level of financial support for a 

needy spouse. See Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct. 

App. 1984). Nevertheless, when deciding whether to modify a support 

award, the need of the receiving spouse cannot be the single-most dominant 

factor, as a substantial and material change in circumstances demands 

respect for other considerations. While the need of the receiving spouse 

remains an important consideration in modification cases, the ability of the 

obligor to provide support must be given at least equal consideration.

Bogan, 60 S.W.3d at 730.

Here, the parties apparently submitted their affidavits of income and expenses to 

the trial court as late-filed exhibits. Wife’s affidavit shows income of $7,489.03 and 

expenses of $7,534.49, leaving a monthly deficit of $45.46. The trial court accepted 

Wife’s stated income but reduced her expenses to $6,712.49, a reduction of $822.00 per 

month. This calculation left Wife with a surplus of $776.54 from which to pay alimony. 

In support of this reduction, the trial court made the following findings: 

The Court realizes that the Court has modified each parties’ Financial 

Affidavit in order to find their reasonable expenses. The Court further is 

aware that the Wife has a minor child that she supports fully without 

assistance from the Husband and that those expenses are included in her 

budget. The Court further finds that at least some of the credit card expense 

claimed by Wife would probably be for items charged that are also in the 

Financial Affidavit list of expenses. Therefore, the Court reduced that 

expense by 50%.

The trial court made no further finding concerning its reduction of Wife’s reasonable 

expenses. 

Respectfully, the trial court’s findings as to its reduction of Wife’s reasonable 

expenses are deficient. Rule 52.01 of the Tennessee Rules of Civil Procedure requires 

that trial courts make findings of fact and conclusions of law to support their rulings 
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following bench trials. Tenn. R. Civ. P. 52.01 (“In all actions tried upon the facts without 

a jury, the court shall find the facts specially and shall state separately its conclusions or 

law and direct the entry of the appropriate judgment.”). Rule 52.01 “is ‘not a mere 

technicality.’” Babcock v. Babcock, No. E2014-01670-COA-R3-CV, No. E2014-01672-

COA-R3-CV, 2015 WL 1059003, at *6 (Tenn. Ct. App. Mar. 9, 2015) (quoting In re 

K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 

15, 2009)). No bright-line test exists to determine whether factual findings are sufficient, 

but the findings of fact must include as many facts as necessary to express how the trial 

court reached its ultimate conclusion on each factual issue. Lovlace v. Copley, 418 

S.W.3d 1, 35 (Tenn. 2013) (citing 9C Charles A. Wright et al., Federal Practice and 

Procedure § 2571, at 328 (3d ed. 2005)) “Without such findings and conclusions, this 

court is left to wonder on what basis the court reached its ultimate decision.” In re 

M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. 

April 21, 2004).

In this case, the only specific reduction mentioned by the trial court is that Wife’s 

credit card expenses “probably” contain some expenses that had previously been counted 

as other expenses. As such, the trial court reduced this expense by 50%. According to 

Wife’s affidavit of income and expenses, Wife’s credit card expenses total $600.00 per 

month. Reducing this expense by 50%, or $300.00, therefore results in only a surplus of 

$254.54, well below the $776.54 surplus found by the trial court. A $254.54 monthly 

surplus, however, is not sufficient to pay the $700.00 per month in alimony ordered by 

the trial court.4There is no further explanation for the trial court’s calculations to 

illuminate how the trial court reached its decision regarding Wife’s ability to pay. The 

trial court’s findings as to Husband’s income likewise contain no specificity as to which 

expenses the trial accepted as reasonable and which it rejected. Finally, the trial court’s 

order does not appear to take into consideration any of the other relevant factors under 

section 36-5-121(i). See Wiser v. Wiser, 339 S.W.3d at 12 (quoting Bogan, 60 S.W.3d at 

730). Under these circumstances, to review the trial court’s ruling, we would be “forced 

to guess at the rational the trial court used in arriving at its decision. This we cannot do.” 

Harthun v. Edens, No. W2015-00647-COA-R3-CV, 2016 WL 1056960, at *5 (Tenn. Ct. 

App. Mar. 17, 2016). We must therefore conclude that the trial court failed to comply 

with Rule 52.01 in deciding whether and to what extent Wife’s alimony obligation should 

be modified.

When a trial court fails to make the necessary findings of fact and conclusions of 

law, the appropriate remedy is typically to vacate the trial court’s judgment and remand 

the cause to the trial court for written findings of fact and conclusions of law. See

Grissom v. Grissom, 586 S.W.3d 387, 396 (Tenn. Ct. App. 2019) (citing Smith v. UHS 

of Lakeside, Inc., 439 S.W.3d 303, 312 (Tenn. 2014)) (discussing the various remedies 

 

4 When the $200.00 arrearage payment is factored in, the $700.00 per month alimony obligation 

is increased to $900.00 per month. 
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that are available in this situation but noting that vacating the trial court’s judgment is 

most in line with the Tennessee Supreme Court’s directive that orders are the products of 

trial courts’ independent judgment); see also Lake v. Haynes, No. W2010-00294-COAR3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011) (explaining that the 

Court of Appeals may proceed to consider the merits of a dispute when “the trial court’s 

decision involves only a clear legal issue or the trial court’s decision is readily 

ascertainable”). Because the trial court failed to comply with Rule 52.01, we vacate the 

trial court’s order and remand this matter for the trial court to make specific findings of 

fact and conclusions of law in compliance with Tennessee Rule of Civil Procedure 52.01. 

We note that Wife also takes issue with the totality of the trial court’s findings as 

to the parties’ income and expenses, given that the financial affidavits were submitted 

following trial, leaving the parties without an opportunity to cross-examine each other

regarding the claimed expenses. From our review of the sparse record on appeal, it does 

not appear that either party objected to this practice. See Tenn. R. App. P. 36(b) 

(“Nothing in this rule shall be construed as requiring relief be granted to a party 

responsible for an error or who failed to take whatever action was reasonably available to 

prevent or nullify the harmful effect of an error.”). On remand, however, the trial court 

may reopen the proof as to alimony in its discretion.

IV. CONCLUSION

The judgment of the Henderson County Chancery Court is affirmed in part and 

vacated in part. Costs of this appeal are taxed one-half to Appellant Janet Lynnette 

McCormick and one-half to Appellee Donny Joe McCormick, for all of which execution 

may issue if necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE