IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2011

AMY LYNN PHELPS v. EMERSON JOHN PHELPS

Appeal from the Chancery Court for Maury County

No. 09-027 Stella L. Hargrove, Judge

No. M2010-00856-COA-R3-CV - Filed June 24, 2011

The trial court granted the wife a divorce after a marriage of nineteen years, awarded her

most of the marital property including the marital home, and made her wholly responsible

for the mortgage debt on the residence. The court awarded the wife the husband’s share of

the equity in the home in the form of alimony in solido. The husband argues on appeal that

the property division was inequitable. He also contends that the trial court should have

awarded alimony to him rather than to the wife. We affirm the trial court’s division of

marital property and its determination not to award alimony to the husband, but we modify

its judgment to include husband’s share of the equity in the marital home in the property

division, rather than as a separate award of alimony in solido.

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

Affirmed as Modified

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which FRANK G.

CLEMENT, JR. and ANDY D. BENNETT, JJ., joined.

Stacy D. Attkisson, Columbia, Tennessee, for the appellant, Emerson John Phelps.

Wesley Mack Bryant, Columbia, Tennessee, for the appellee, Amy Lynn Phelps.

OPINION

I. A TROUBLED MARRIAGE

Emerson John Phelps (“Husband”) and Amy Lynn Phelps (“Wife”) were married in

their home state of New York on August 25, 1990. Husband was twenty-one years old at the

time of the marriage and Wife was eighteen. Wife earned an associates degree in nursing,

became a registered nurse, and began working at a hospital. Husband took a job removing
asbestos, which paid well, but Wife was worried about the health effects of the work and

asked Husband to quit, which he did.

The parties came to Tennessee to visit with Wife’s aunt and uncle. They both liked

the area and decided to relocate. They moved to Columbia, Tennessee, in 1993, and Wife

quickly found a job as a nurse. Husband worked odd jobs and was eventually hired to work

at the Maury County Sheriff’s Department. Husband’s father died in 1997, and Husband

suffered a “major breakdown.” The parties returned to New York in 1998, and they moved

into a cabin owned by Husband’s mother. They eventually purchased the cabin, using money

that Wife had saved by working overtime. The price was $35,000, which was well below the

cabin’s market value. A 1929 Model A Ford parked in the garage was later deemed by the

court to be marital property.

The only child of the couple, a daughter, was born on October 17, 2001. Wife was

working as a school nurse at the time, and she took time off to care for the child, returning

to work at the beginning of the following school year. The parties agreed that Husband

would stay home and take care of the child after Wife returned to work, but Husband began

showing symptoms of obsessive-compulsive disorder. According to his own appellate brief,

he “felt the need for the home to be spotless and germ-free for [the child] and himself. He

began to go overboard with germ issues and would wash his hands until they bleed.” Other

bizarre behavior included not allowing other children to play with the child or touch her toys,

waking her up at two or three in the morning to shower because she was not clean enough,

and discussing his death with her, asking how she would feel if he were dead.

The parties moved back to Tennessee in 2005, and Wife immediately found a job at

Maury Regional Hospital. She worked a full-time schedule which only included weekend

hours. Husband was unable to find immediate employment, but was eventually rehired at the

Sheriff’s Department. Wife testified that Husband stayed in bed or on the couch until he was

employed, so she had to take care of their child from Monday through Friday. In 2006, the

parties bought a home in Columbia for $190,000. They subsequently sold the home in New

York for $95,000 and used the proceeds to pay down the mortgage on the marital home.

There was a balance of $42,000 on the mortgage at the time of trial.

Needless to say, Husband’s worsening mental illness took a toll on the parties’

marriage. Things apparently came to a head in December 2008. Wife had previously talked

to Husband about leaving him, and he had consistently responded by saying that he would

kill himself if she left.

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On December 16, 2008, Wife told Husband she wanted a divorce. The following

morning, Husband, who was still employed by the Maury County Sheriff’s Department,

carried a handgun as he walked through the kitchen of the parties’ home, where the minor

child was having breakfast. He went out into backyard, held the gun to his head, and

threatened to kill himself. The SWAT team was called, and after about 45 minutes they were

able to talk him into putting the gun down. He was taken to the hospital and transferred for

psychiatric treatment. That episode led to an agreed restraining order that prohibited

Husband from carrying a firearm or having contact with Wife or with the minor child.

Husband also agreed to go to counseling.

II. DIVORCE PROCEEDINGS

On January 15, 2009, Wife filed a complaint for divorce in the Chancery Court of

Maury County. She alleged as grounds inappropriate marital conduct or, in the alternative,

irreconcilable differences. She asked the court to equitably divide the marital property, to

award her custody of the parties’ daughter, and to order Husband to pay child support. She

also asked for an award of alimony. In his answer and counter-claim, Husband admitted that

there were irreconcilable differences between the parties and that their marriage was

irretrievably broken, but he alleged that Wife had abandoned him. He asked for custody of

the child and for an award of alimony.

The divorce hearing was conducted on October 20, 2009. Both parties testified at

length, and there also was brief testimony by the child’s counselor and Maury County Sheriff

Enoch George. No court reporter was present, so our understanding of what transpired at the

hearing is derived from the court’s Memorandum and Order and from the Statement of the

Evidence that was prepared in accordance with Tenn. R. App. P. 24(c). We also have the

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benefit of the transcript of the discovery deposition of Husband’s certified mental health

counselor, which was admitted into the record by agreement of the parties, and the child’s

confidential psychological record.

According to the statement of the evidence, the child’s counselor testified that she sees the child

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once every other week because of anxiety issues. She said that the child talked about missing her father and

about how they used to play together. She also testified that the child believed it was her responsibility to

keep her father from hurting himself, and that she blamed herself for his suicide attempt. The counselor

recommended that the child be able to visit with her father, but that the visits be scheduled on a limited basis

and under supervision, with continued counseling for both the child and her father.

Sheriff George testified that he knew both parties and that they were good people. He also testified

that “he would rehire Mr. Phelps if he was the best man for any available position.” 

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At the conclusion of the hearing, the trial court named Wife temporary primary

residential parent and set supervised visitation for Husband, taking the other issues in the

case under advisement. On November 16, 2009, the court filed a Memorandum setting out

its findings of fact and conclusions of law. The court discussed Husband’s psychological

history and described a long course of irrational conduct by Husband, much of which was

played out in the presence of the child. We have already discussed some of that conduct and

do not need to elaborate any further.

The court noted Husband’s complaint that Wife was cold and distant with him, but

it found that his complaints “pale in the face of his cruel and unusual treatment of Wife and

their child.” The court accordingly granted Wife a divorce on the ground of inappropriate

marital conduct and named her as the child’s primary residential parent, with Husband to pay

child support in accordance with the guidelines. Because Husband had not earned very much

money after 1998, the court imputed income to him based on a full-time job at minimum

wage, resulting in a child support obligation of $328 per month. Husband was also given

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the right to exercise supervised parenting time with the child.

The trial court then turned to the division of marital property, discussing every one of

the statutory factors set out in Tenn. Code Ann. § 36-4-121(c) and applying them to the

testimony it had heard. The parties had not accumulated very much in the way of marital

assets, and the marital estate mostly consisted of the equity in the marital home, the furniture

in that home, a 2005 Chevrolet Avalanche, the 1929 Model A Ford, and Wife’s 403(b)

retirement account, which had a value of $5,187.87.

Wife had presented an inventory of the marital assets to the court, together with her

proposed valuations as to each asset. She also proposed a specific division of those assets.

The trial court declared that it was adopting the valuations proposed by Wife and awarded

her all the property she requested, as well as the guest room furniture and the child’s

furniture, which had a purported total value of $1,500.

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The court noted that there were no income and expense statements in the record reflecting Wife’s 2

or Husband’s current income. However, for the purposes of calculating child support, the parties had agreed

to use a figure of $52,000 a year for Wife’s income as a registered nurse. 

There is an exhibit in the record titled “Wife’s Statement of Marital Property,” which contains 3

columns for both Husband’s and Wife’s values of the property. There is no separate statement by Husband. 

Wife’s statement shows wide disparities as to the listed valuations for some of the property. For example,

Wife gave a value of $25 to “Holiday decorations” and the same to “Digital camera.” The values listed in

Husband’s columns for those same items were $1,000 and $500 respectively. 

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For the purposes of this appeal, the most important component of the property division

was the trial court’s award to Wife of the marital home, which was valued at $171,000. The

court declared that it was awarding Husband’s share of the equity in the marital home to Wife

in the form of alimony in solido. Wife was also made entirely responsible for the $42,000

balance owed on the mortgage as well as all the other marital debts, totaling an additional

$17,384. Husband was not held responsible for any marital debt, but he was declared liable

for $3,280 in past due child support, which was ordered to be paid in sixty days. Wife was

awarded the entire amount in her 403(b) account. Husband was awarded most of the

household furnishings and the antique automobile, which the court valued at $11,000.

The Final Decree of Divorce incorporated the trial court’s Memorandum, and was

entered on January 12, 2010. Husband subsequently filed a motion for new trial or to alter

judgment, which focused on the alimony in solido awarded by the trial court. The court

denied the motion, stating that even if an award of alimony in solido was not appropriate,

the factors governing the equitable division of marital property would still weigh in favor of

awarding Wife all the equity in the marital home, free from any claim by Husband. This

appeal followed.

III. ANALYSIS

A. The Standard of Review

Our review on appeal 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); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v. Bogan, 60 S.W.3d

721, 727 (Tenn. 2001); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review

a trial court’s conclusions of law de novo, with no presumption of correctness. Whaley v.

Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993).

B. Valuation and Division of Marital Property

Tennessee Code Annotated § 36-4-121(a)(1) authorizes the trial court in actions for

divorce or for legal separation, to equitably divide, distribute, or assign the marital property

“without regard to marital fault in proportions as the court deems just.” See Jolly v. Jolly,

130 S.W.3d 783, 785 (Tenn. 2004). Our legislature has set out a list of relevant factors for

the court to consider when dividing marital property. These are:

(1) The duration of the marriage;

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(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 contributions 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 or dissipation of the marital orseparate 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 his or her 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; and

(10) Such other factors as are necessary to consider the equities

between the parties.

Tenn. Code Ann. § 36-4-121(c)

The trial court’s task is to make an equitable, or fair, distribution of property. “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.” Keyt v. Keyt, 244 S.W.3d 321, 328

(Tenn. 2007) (citing Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003)). Although

Tennessee Code Annotated § 36-4-121(a)(1) requires the court to order an equitable division

of marital property, an equitable division is not necessarily an equal division. Larsen-Ball

v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010); Robertson v. Robertson, 76 S.W.3d 337, 341

(Tenn. 2002); Smith v. Smith, 984 S.W.2d, 606, 609 (Tenn. Ct. App. 1997).

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Because the division of marital property is “not a mechanical process,” and because

decisionsregarding the division of marital property are fact-specific and many circumstances

surrounding the property and the parties play a role, a trial court has a great deal of discretion

concerning the manner in which it divides marital property. Keyt, 244 S.W.3d at 328; Jolly

v. Jolly, 130 S.W.3d, 783, 785 (Tenn. 2004); Flannary, 121 S.W.3d at 650; Smith, 984

S.W.2d at 609.

As a general matter, reviewing courts will evaluate the fairness of a property division

by its final results. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990).

Further, “unless the court’s decision is contrary to the preponderance of the evidence or is

based on an error of law, we will not interfere with the decision on appeal.” Sullivan v.

Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002) (citing Goodman v. Goodman, 8

S.W.3d 289, 298 (Tenn. Ct. App. 1999)). Thus, appellate courts ordinarily defer to the trial

court’s division unless it is inconsistent with the factors set forth in Tenn. Code Ann. § 36-4-

121(c) or is not supported by a preponderance of the evidence. Jolly, 130 S.W.3d at 785-86.

Husband complains that the trial court’s division of marital property and debt in this

case was inequitable because it was very one-sided in favor of Wife. He also claims that the

trial court erred in its valuation of the marital assets, but notes that even according to the trial

court’s valuations, Wife received marital property with a total value of $193,221.87, while

the total value of the property awarded to him was only $25,225. He accordingly asks this

court to reverse the trial court and award him half of the marital property. He also argues that

the factors governing spousalsupport preponderate against the trial court’s award of alimony

to Wife. We will briefly discuss the question of valuation first.

Decisions regarding the value of marital property are questions of fact, and we will

not second-guess them on appeal unless they are not supported by a preponderance of the

evidence. Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App. 2007) (citing Kinard v.

Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998)). Husband asserts that Wife presented

lower estimates of the value of the property she wished the court to award to her and higher

estimates of the value of the property she wished the court to award to Husband, in order to

reduce the appearance of disparity in values between their respective awards, and that the

trial court erred by adopting her valuations in toto.

We are necessarily constrained in our discussion of valuation by the limitations

imposed on us by the state of the record. For example, Husband notes that the marital home

was purchased for $190,000, and he complains that the trial court accepted Wife’s valuation

of $171,000, even though there is no indication in the Statement of the Evidence that she

offered any explanation for the discrepancy. There is no indication in the record, however,

that Husband challenged Wife’s valuation of the marital home at trial or offered

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contradictory evidence of value. Under Tenn. R. App. P. 13(c), this court is only allowed to

“consider those facts established by the evidence in the trial court and set forth in the record.”

Husband also takes issue with the trial court’s valuation of $11,000 for the 1929

Model A Ford. He acknowledges Wife’s testimony that the parties found a similar model

car on the internet for that price. He testified, however, that the car is completely

disassembled, missing parts and rusted over, and he estimated that it was worth no more than

$2,000 in its current condition. However, in the face of conflicting opinions regarding the

value of a marital asset, the trial court may place a value on the asset that is within the range

of the values presented by the competent evidence. Owens, 241 S.W.3d at 486 (citing Watters

v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997); Brock v. Brock, 941 S.W.2d 896,

902 (Tenn. Ct. App. 1996)).

All of the trial court’s valuations were supported by competent evidence. Thus, the

record does not contain sufficient countervailing evidence to overcome the presumption of

correctness that accompanies the trial court’s findings of fact. Further, whether or not we

accept Husband’s valuations as correct, it remains beyond dispute that under the trial court’s

order, Wife received a far greater share of the marital assets than did Husband. Thus, the

question of exact valuation is only marginally relevant to our inquiry into the equity of the

property division.

The trial court correctly noted that this was a long-term marriage, and that in the

absence of other countervailing considerations, that factor supports a presumption that the

marital assets should be equally divided. See Dellinger v. Dellinger, 958 S.W.2d 778, 781

(Tenn. Ct. App. 1997) (citing Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. Ct.

App. 1990)). However, the court found that under the extraordinary circumstances of this

case, an equal division was not appropriate, citing in particular “[t]he contribution of each

party to the acquisition, preservation, appreciation or dissipation of the marital or separate

property including the contribution of a party to the marriage as homemaker, wage earner or

parent, . . . .” Tenn. Code Ann. § 36-4-121(c)(5).

It is undisputed that Wife has always been the family’s primary wage earner and that

Husband earned very little over the course of the marriage. Husband had apparently testified,

however, that he was a “stay-at-home dad,” and implied that he had been the primary

caretaker of the parties’ child. The trial court found his testimony not to be credible, and

concluded that Husband had contributed very little to the parenting of the child. Wife thus

had to serve not only as the family’s main breadwinner, but also as the primary parent. In

light of her testimony as to periods of time when Husband was unable to get out of bed or

off the couch, it is likely that she functioned as the primary homemaker as well.

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Husband also implies that the trial court should have considered the profit the parties

enjoyed from the sale of the cabin that they bought from his mother at a below-market price

as a significant contribution to the marriage on his part. The trial court did acknowledge in

its Memorandum the role played by that sale in the financing of the marital home, but it also

noted the long hours that Wife worked to earn enough to be able to buy the cabin, as well as

to make the down payment on the marital home. We can find no error in the trial court’s

determination that Wife’s contribution to the acquisition and preservation of the marital

property far exceeded Husband’s and that it justified awarding a far larger share of that

property to her than to Husband on that determination.

In contrast to “the contribution of each party, . . .” which is a retrospective factor,

many of the other statutory factors for division of marital property are prospective. That is,

they look at the relative positions of the parties after divorce, including their mental and

physical conditions and their ability to support themselves without the assistance of the other

spouse. If these factors were considered in isolation, then Husband would likely be entitled

to a greater share of the marital estate than he was awarded. Unlike Wife, who has a college

degree and professional certification, Husband does not have a college education, and he has

experienced unfortunate mental health issues, but is now in counseling.

However, Husband has managed to find and perform a variety of jobs, and there was

no testimony as to any physical problems that might limit his employability. Further, his

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certified mental health counselor testified that he had achieved a measure of control over his

obsessive-compulsive disorder, which appears to have been at its worst when he was staying

home with his young daughter. The evidence therefore suggests that he has the ability to

support himself.

The trial court’s memorandum shows that it considered all of the statutory factors

before coming to the conclusion that the post-divorce economic circumstances for both

parties were problematic and that “it will be financially difficult for Wife to live separately

and provide for herself and the child with very little, if any, financial assistance from

Husband towards child support.” The court accordingly relied on the relative contribution

of each party to the acquisition of the marital assets as the decisive factor in its decision to

award the marital home to Wife, free of any claims by Husband, but subject to a mortgage

for which she would assume full responsibility.

Husband’s brief on appeal states that he “worked at several jobs, including McDonalds, Pepsi, 4

janitorial services, and he also supervised handicapped people.” The record shows Husband had a job

removing asbestos and worked with the Sheriff’s Department. Husband testified that he was working as a

substitute teacher and doing odd jobs at the time of trial.

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Wife has the greater need for the home since she is raising the parties’ child there, and

she is in a far better position than Husband to pay the mortgage and the other household

expenses. Husband does not argue that he should have been awarded the home instead of

Wife, but he suggests that the trial court should have adjusted the division of marital property

somehow, so he could receive an equal share of the marital assets. However, the marital

home was the most valuable asset in the marital estate by far, worth more than all the other

assets combined. To even come close to equalizing the property division, the trial court

would have had to order Wife to either sell the only home the minor child has ever known,

or incur substantial debt, thereby greatly increasing her financial burden. In its Final Order,

the court declared that such a solution “would not only be inequitable, but unconscionable

. . . .” In sum, the evidence does not preponderate against the trial court’s division of marital

property.

C. Alimony

The Final Order in this case declared that “Wife shall receive as alimony in solido half

of the equity in the former marital residence, representing Husband’s portion of equity in said

residence.” Husband correctly argues that the trial court erred by awarding any form of

alimony to Wife, since he is clearly the economically disadvantaged spouse, and he has the

greater need, while Wife has the greater ability to pay.

Tenn. Code Ann. § 36-5-121(a) authorizes our courts to award alimony in divorce

cases “to be paid by one spouse for the benefit of the other, or out of either spouse’s property,

according to the nature of the case and the circumstances of the parties.” Other sections of

the same statute refer numerous times to the “relatively disadvantaged spouse” as the one

who is entitled to such support. It is undisputed that Husband is at an economic disadvantage

relative to Wife, and thus it is inappropriate to order him to pay alimony to Wife.

Tenn. Code Ann. § 36-5-121(i) sets out a list of factors for the court to consider in

determining whether an alimony award is warranted, and if so, the type and amount of such

an award. These factors are similar to the ones set out in Tenn. Code Ann. § 36-4-121(c)

to assist the court in reaching an equitable division of marital property, except that in making

an alimony decision, the court may consider “[t]he relative fault of the parties, in cases where

the court, in its discretion, deems it appropriate to do so.” Tenn. Code Ann. § 36-5-

121(i)(11).

Our courts have stated many times that in making an alimony determination the most

important factors to consider are the obligee spouse’s need and the obligor spouse’s ability

to pay. Robertson, 76 S.W.3d at 342; Bogan, 60 S.W.3d at 730; Riggs v. Riggs, 250 S.W.3d

453, 457 (Tenn. Ct. App. 2007); Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct.

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App. 1984). Although the trial court is required to consider all the relevant factors, it

nonetheless, “is afforded wide discretion regarding the award of spousalsupport, and we will

reverse the court’s findings only upon determining that such discretion ‘has manifestly been

abused.’” Hill v. Hill, M2007-00471-COA-R3-CV, 2008 WL 1822453 at *7 (Tenn. Ct. App.

Apr. 23, 2008) (no Tenn. R. App. P. 11 application filed) (citing Hanover v. Hanover, 775

S.W.2d 612, 617 (Tenn. Ct. App. 1989)).

Husband also argues that the trial court should have awarded him alimony. We find

that the trial court did not abuse its discretion in declining to award alimony to Husband. We

agree with Husband, however, that under the circumstances of this case, it was inappropriate

to award alimony to Wife. However, that does not mean he is entitled to half the equity in

the marital home. Because the marital home was acquired during the course of the marriage,

and because the equity in it was acquired by payments made during the marriage, both are

included in the statutory definition of marital property:

“Marital property” means all real and personal property, both tangible and

intangible, acquired by either or both spouses during the course of the marriage

up to the date of the final divorce hearing and owned by either or both spouses

as of the date of filing a complaint for divorce . . . .

Tenn. Code Ann. § 36-4-121(b)(1)(A).

The trial court was therefore authorized to determine the proper disposition of the

marital home and the equity in the home pursuant to its authority under Tenn. Code Ann.

§ 6-4-121(a)(1) to divide marital property equitably. As we stated above, an equitable

division is not necessarily an equal division. In this case, the most equitable division is one

which leaves the marital home to Wife, free of any claims by Husband, but subject to a

mortgage for which she assumes full responsibility, with Wife also assuming all

responsibility for the other marital debts.

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We thus affirm the award of the marital home and all the equity in it to Wife, but we

modify the trial court’s judgment by making that award part of the division of marital

property rather than a separate award of alimony.

The trial court itself recognized the problematic nature of its alimony award by stating in its order 5

denying Father’s motion to alter or amend that “even if this court erred in its award of alimony in solido to

Wife, that this Court would find that an equitable division of the martial (sic) property in this case would

mandate that Wife should retain the former marital residence free and clear of any claim by Husband.”

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IV.

The judgment of the trial court is affirmed as modified. We remand this case to the

Chancery Court of Maury County for any further proceedings necessary. Tax the costs on

appeal to the appellant, Emerson John Phelps.

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PATRICIA J. COTTRELL, JUDGE

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