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IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 15, 2019 Session

RUBY DIANE BARRON V. BRUCE JOSEPH BARRON

Appeal from the Chancery Court for Hamilton County

No. 17-0585 Pamela Fleenor, Judge

___________________________________

No. E2018-02257-COA-R3-CV

___________________________________

Wife filed for divorce on the grounds of irreconcilable differences. The trial court granted 

husband a divorce on the grounds of wife’s adultery and other inappropriate marital 

conduct. Despite the many factors found by the trial court to be favorable to husband, the 

court awarded husband only 43% of the net marital estate. It also awarded husband one 

year of transitional alimony at $2,000 per month. We hold that the trial court erred in its 

division of the net marital assets and in its determination as to the duration of the 

transitional alimony awarded to husband. We modify the trial court’s judgment so as to 

provide husband five years of transitional alimony. We hold that the Roth IRA is a 

marital asset; it is awarded to husband and wife in equal share. Furthermore, we hold that 

the FERS pension account is to be divided between the parties as set forth in this opinion. 

As modified, the judgment of the trial court is affirmed. 

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

Modified in Part; Case Remanded 

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL 

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

Jillyn O’Shaughnessy, Chattanooga, Tennessee, for the appellant, Bruce Joseph Barron.

John T. Rice, Chattanooga, Tennessee, for the appellee, Ruby Diane Barron.

OPINION

I.

In July 1991, husband and wife met, in Germany. At the time, husband worked as 

a tour guide, and wife worked as a speech pathologist on a US military base. In 

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December 1991, they were married; Husband was 36 years old and wife was 40. It was 

both of their first marriage. 

The parties live in Germany. Husband is now 62 years old and wife is 67. 

Husband has a plural effusion of the left lung from cancer. He had chemotherapy from 

2015-2016, and hernia surgery in 2018. As a result, husband can only work a job that is 

sedentary. Wife is in good health, and continues to work as a speech therapist for the U.S. 

Department of Defense school system, in Germany. Her income is listed as $11,893.52 

per month. 

The parties have a biological son that was born in 1993. They later adopted a 

second son that had developmental delays. After the adoption of their second child, 

husband became a homemaker. Husband has not been employed outside of the home 

since 2005. Throughout the marriage, wife traveled extensively without the children and 

husband. Husband was often left home alone to care for them. 

On August 8, 2017, wife filed a complaint for absolute divorce on the ground of 

irreconcilable differences. On November 21, 2017, husband filed his answer and 

counterclaim; he alleged that wife had committed adultery and other inappropriate 

marital conduct. Husband stated in his response to wife’s request for interrogatories that:

My wife is rarely at home on US holidays or school vacation 

time. She has regularly taken overnight trips and extensive 

vacations without our family. This has been going on for 

many years. US holidays and school vacation times were 

normally the busy times when I would’ve worked as a tour 

and travel guide for the US forces in Europe. I was unable to 

work when she was gone because we had a young child to 

care for. This was starting [sic] when my wife went on a trip 

to Russia by herself in April Easter break of 1995.

My wife was also president of the overseas speech and 

hearing association which required her to travel on frequent 

overnight trips, sometimes from Germany back to the US. 

Some of the more recent trips she has taken, while I was with 

the kids at home, are as follows:

Oct 6-9 2017. Milan Italy

Sept 15-17 Somewhere in Germany

Sept 1-4 Belgium 

July 6-Aug 12 Florida, Tn. (Against my will, 

She took my youngest son went with her.)

May 26-29 Mediterranean island of Cypress
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April 7-16 Greek island cruise

Nov 23-27 2016 Thanksgiving Barcelona, 

Spain

Oct 7-10 Stockholm, Sweden

Sept 2-5 Vienna Austria

July and Aug tour of China

April 7-9 Croatia Slovenia

Fall of 2015 Eastern Mediterranean cruise

June-Aug Florida, Ms

April Baltic states Latvia, Lithuania, Estonia

2014 June-August Cambodia, China and S 

Korea

This is only a partial list, there are many more vacations she 

has taken without our family. Diane has had extramarital 

relationships which are not appropriate or conducive to 

married family life. She continues to this day to be in a casual 

relationship with a man whom she met on the internet, going 

on dates with him to plays in Frankfurt, taking him shopping 

in the military PX, which is illegal because it is a violation on 

German tax laws. She puts her job and our family in jeopardy 

by doing this. It’s embarrassing and humiliating to me 

because my neighbors have informed that this man was in our 

house when I wasn’t there. She continually had him at our 

house when I wasn’t home. I know this because my kids 

always told me about it. I believe it hurt them emotionally.

I initiated marital counseling several years ago. The counselor 

told Diane she should stop seeing this man but Diane refused 

and quit counseling instead.

She also continues in an inappropriate relationship with an 

old boyfriend who used to write her letters of affection and 

address them to Diane’s friend so that I wouldn’t find them in 

our mailbox. This goes back to the days before email. She 

saved the letters and I discovered them when unpacking a 

move from Darmstadt to Wiesbaden Germany for her job. 

The messages were left open on our family computer

indicating that they regularly planned on meeting each other. 

He regularly traveled from Atlanta to Germany on duty

assignment with the US army. He was with my wife on the 

third weekend in February, 1997 while I was working on a 

tour at the time. I know this because he said it in the letter. He 
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also said how affectionate and sexy she was. Diane continues 

to correspond back with him to this day. I didn’t feel too good 

about it. It had become apparent to me that Diane cared more 

about the affection of other men than her husband.

My wife is moody, changing her mind frequently. This is the 

third time divorce has been filed. The other two were 

withdrawn. One was in Germany and was withdrawn because 

she did not want to divide assets. The other in Tennessee 

because attorney was someone she told me that she 

previously had sexual relations with and that she continues to 

visit and be friends with today. My wife insisted on having 

invitro-fertilization done by a fertility specialist until she was 

49 years old, even though the doctor told her that infertility 

was not her problem, advanced age was. This included having 

2 egg donors which is not legal in Germany. We had to go to 

Belgium for this. This was at an expense of more than 

$60,000. She finally agreed that adoption was the best option. 

We were only allowed to adopt because I was younger than 

50 at the time and told the judge and stated in our dossier that 

I would be able to stay at home and care for the baby while 

she had a professional job that would provide a good income 

for our family. This worked well for our family but because 

the nature of my work, being out of the country for days at a 

time, I was no longer able to work this job. When my 

youngest son was old enough for school, I worked at the 

education center on the military base but lost this job when 

the base closed and Diane transferred and moved our family 

to Wiesbaden for her new job. We purchased a house together 

which my name was on the loan and has been paid for with 

the US government employee overseas dependent spouse and 

family housing allowance. My name was on the mortgage 

because otherwise, the bank would not finance it. Shortly 

after we moved into the new house, Diane closed joint 

accounts and credit card and withheld money even though she 

was getting a tax free spouse and family housing and overseas 

cost of living allowance. On a Facebook post, she told her 

boyfriend in Pell City Al that she intended on doing this. This

has continued to this day, she refuses any support. This 

includes medical and dental care because I did not have the 

money to pay up front. When I was diagnosed with cancer 

and a grade 4 tumor requiring surgery and several months of 

chemo therapy, my wife left for a vacation in Florida for the 
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summer leaving me no money for the chemotherapy 

medication. This was even though we had insurance that 

would reimburse 90% of the cost. I had to [borrow] money. 

She has continued to tell me to move even though I am 

unable to and this has put tremendous stress on me. Legally, I 

can only stay in Germany with my son as a dependent spouse 

on US government orders which I have been for over 25 

years. My wife has refused intimacy for a long time telling 

me that she is intimate with someone better able to please her. 

I believe she says this to me only to be hurtful. This is only a 

partial description of behaviors which to me are inconsistent 

with a healthy marriage.

On December 13, 2017, wife filed an affidavit stating that the oldest son had 

graduated from the University of Tennessee. The youngest son graduated from high 

school, in Germany, in 2018, and has been accepted under the Tennessee Promise 

Program, which grants students free college tuition. Therefore, both children have 

reached the age of majority. 

On May 3, 2018, wife filed a motion to set the matter for trial. On May 24, 2018, 

the trial court entered an order stating that the parties had agreed to set the trial for 

August 8, 2018 as to all issues. Wife then filed for partial summary judgment; she 

requested that the parties’ home (referred to as Hessloch Folio 813, in Wiesbaden, 

Germany) be deemed her separate property. Wife argued that she paid the mortgage, 

upkeep, and other expenses for the home, and therefore it should be her separate 

property. She argued that husband has made “no contribution whatsoever to the 

property.” 

Husband opposed wife’s motion for partial summary judgment. He argued that the 

house was acquired, on July 8, 2010, while the parties were married. He argued that 

Tennessee law distinguishing marital property from separate

property is clear. [Tenn. Code Ann.] § 36-4-121(b)(1)(A) 

describes “marital property” as “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 of a complaint for divorce...”

He argued that the house does not qualify as separate property. He argued that, in 

addition to non-monetary contributions recognized under law, wife produced documents 

that contained financial statements regarding the home dated in 2010 addressed to 
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husband alone, and a loan statement in both husband and wife’s names. In addition, 

husband argued that

As for [wife’s] claim that she is the only one who has 

contributed to the Home, the fact is also disputed. 

Contributions to the marital property is a factor that the Court 

may consider in dividing the marital asset, but not in 

determining whether the asset is a separate asset when he 

does not meet the very definition of separate property, such as 

the Home in this case. 

Tennessee recognizes that a spouse’s contributions to marital 

property are not limited to financial contributions. [Tenn. 

Code Ann.] § 36-4-121(b)(1)(D) states that a “substantial 

contribution” by a spouse to marital property may include 

“the direct or indirect contribution of a spouse as homemaker, 

wage earner, parent or family financial manager, together 

with such other factors as the court having jurisdiction thereof 

may determine.” Thus, even if [wife] paid the mortgage on 

the Home, [wife] was not the sole contributor to the Home 

and is not entitled to separate property rights to the Home at 

the exclusion of the [husband].

The court denied wife’s motion. It held that wife failed to allege any facts demonstrating 

that the home should be considered separate property. The court further stated that even if 

the burden of production had shifted to husband, he presented a genuine issue of material 

fact as to whether the home should be considered separate or marital property. The court 

noted that husband had alleged he contributed financially to the home by taking out a 

loan of 285,000 Euros for the purchase, and other substantial contributions as a 

homemaker, parent, and otherwise. The court held that husband “presented evidence from 

which the factfinder could determine that [husband] ‘substantially contributed’ to the 

home, within the meaning of Tennessee law, and therefore, there is a genuine issue of 

material fact in dispute.” 

At the outset of the trial, the trial court asked if there were any preliminary 

motions or announcements. Wife’s counsel stated “no.” Both parties waived making an 

opening statement. 

Husband and wife were the only witnesses that testified at trial; the court took the 

matter under advisement. On September 28, 2018, the court entered its memorandum 

opinion and decree. The court held that husband was the credible witness. The court held 

that, when the parties moved into their house in Wiesbaden, wife took the master 
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bedroom and husband had to purchase a separate bed and sleep in the basement. Wife 

locked the master bedroom door beginning in January 2018. 

The court held that wife committed adultery, made disparaging remarks toward 

husband, and did not help him with his cancer treatment. Accordingly, the court granted 

husband a divorce on the grounds of wife’s adultery and inappropriate martial conduct. 

The court held that wife has the greater ability for future acquisition of capital 

assets and income. It held that wife had dissipated marital assets. After the divorce was 

filed, wife withdrew $9,500, on September 21, 2017; $9,800, on September 22, 2017; 

$5,000, on September 25, 2017; and $8,600, on September 26, 2017 – for a total of 

$32,900 – from her account at Community Bank. The court held that the parties had a 

joint mutual fund at Smith Barney to which both contributed; wife made numerous 

withdrawals of $3,000 to $5,000 each from the account and closed it in 2015. In addition, 

$4,600 is missing from the house; the court stated that “[t]his was next to the son’s 

passport. Wife admitted taking the son’s passport but denied taking the money. The 

[c]ourt finds it is more likely than not that [w]ife took this money.” The court also stated 

that husband found $12,000 in the master bedroom with two withdrawal tickets dated 

October 19, 2017 and October 24, 2017 (both after the divorce was filed). 

The court held that wife receives a housing allowance each month. The utilities 

and insurance are covered by the housing allowance. Wife makes $88,000 a year and 

receives $54,890 in housing allowance that is not taxable. She also receives $500 a month 

in cost-of-living-adjustment that is tax-free. She receives two paychecks a month, one for 

$4,638.77 and one for $4,245.25. The court stated that wife based her request for the vast 

majority of marital assets on the fact that she “paid for everything.” Wife had further 

argued that “[h]usband was underemployed or chose not to work, and therefore did not 

contribute to the marriage or the marital estate.” The court disagreed. The court 

emphasized husband’s contributions to the household as a homemaker, while wife 

worked, throughout its decree. It held that “[w]ife contributed to the marriage financially 

and [h]usband contributed as house husband. Husband’s contributions as homemaker 

contributed to the increased earning power of [w]ife.” 

The court stated that it will be difficult for husband to find employment in 

Germany, once the divorce is entered, due to an established hierarchy for obtaining US 

government employment overseas. Because husband will not be able to obtain 

employment in Germany, as he will no longer be a spouse of a government employee, he 

can only remain for three months following the divorce. Husband will need to make an 

intercontinental move to re-establish himself in the United States. 

Ultimately, the court divided the marital assets, as follows:
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The net marital assets total $1,279,400. Husband’s award of $548,900 represents 

approximately 43% of the total assets. Wife’s award of $730,500 represents 

approximately 57% of the total assets. The court awarded each party its Lincoln Life 

Insurance policy. The court stated that “[it] is aware that the property division is not 

equal, but the [c]ourt determines that it is an equitable division, and the difference is a 

factor in the alimony award...and in the award of attorney’s fees.” The court did not 

clearly elucidate how its award was equitable in light of its factual findings. 

EQUITABLE DIVISION OF ASSETS AND €IABILITIES

IIUSBAND

ASSETS LIABILITIES

Thrift Savings $460,000 Starr card $800

Community National Medical bill 54,600

Account #3681602167 $65,000

Andrews FCU Visa S1,000

Naspa Bank 520,000

Andrews FCU SI0,300

NET $548,900

WIFE

ASSETS LIABILITIES

Marital residence 5720,000 Mortgage 5319;000

Timber Land $79,000 Loan S20,000

Andrews ICU $49,000

Naspa Sparkasse $30,000

RO I'H ERA $139,000

Cash removed by Wife $49,500 (32,900 + 12,0(10 + 4.600)

2004 Valvo 53,000

NET 5730,500
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The court awarded husband transitional alimony of $2,000 per month for one year, 

and directed wife to maintain husband’s health insurance until he reaches the age of 65. 

The court stated that the alimony was awarded so that husband can “come to America to 

establish and maintain a household and to adjust to the economic consequences of the 

divorce.” The court declined to grant a longer period of alimony, because “[w]ife is 67 

years old and has already passed retirement age.” 

The court also held that wife paid her attorney’s fees with marital assets. “The 

[c]ourt’s division of assets provided [h]usband with some funds but those assets are to 

provide long-term security.” Accordingly, the court awarded attorney’s fees as alimony 

in solido to husband; the court’s division of assets resulted in wife receiving $181,600 

more, and the court stated that the $24,000 in alimony in solido “can be used to adjust the 

distribution of marital assets.”

On October 16, 2018, husband filed a motion to alter or amend requesting one half 

of the FERS Pension Account, a longer period of alimony, and a more equitable share of 

the marital assets and liabilities. On October 23, 2018, wife filed a motion to alter or 

amend or make additional fact findings with a brief in support. Wife argued that the court 

had improperly prevented her from conducting necessary discovery. She argued that the 

court should have given her credit for having insurance for husband through her job, 

instead of holding that she failed to help husband with his cancer treatment. Furthermore, 

she again argued that husband is not disadvantaged, and that she is entitled to the accrued 

marital assets, because she was the primary wage earner. Both wife and husband filed 

responses. 

On November 6, 2018, the court entered an order clarifying that wife should 

receive $730,500 of net assets in addition to her FERS retirement. In addition, the court 

entered two orders denying the motions to alter or amend. Essentially, the court held that 

the parties were attempting to relitigate matters that had already been adjudicated, and 

that the division of assets must be equitable, but not necessarily equal. 

On October 16, 2018, husband had filed an affidavit of attorney’s fees showing 

fees and expenses totaling $18,243. On November 7, 2018, husband filed a motion 

requesting that wife pay his attorney’s fees. The court awarded husband his attorney’s 

fees by order dated November 20, 2018, in the amount of $18,243. On December 20, 

2018, husband timely appealed. 

II.

Husband asks this Court to consider:

Whether the trial court erred in distributing the marital assets 

and liabilities of the parties.
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Whether the trial court erred by awarding only one year of 

transitional alimony. 

Whether husband should be awarded his attorney’s fees on 

appeal. 

Wife asks this Court to consider:

Whether the trial court erred by failing to require 

supplemental discovery. 

Whether the trial court erred in finding that wife committed 

adultery and inappropriate marital conduct. 

III.

We review a non-jury case de novo upon the record, with a presumption of 

correctness as to the findings of fact unless the preponderance of the evidence is 

otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 

2000). We review questions of law, including those of statutory construction, de 

novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. 

Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 

224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding 

witness credibility are entitled to great weight on appeal and shall not be disturbed absent 

clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417, 

426 (Tenn. 2011).

IV.

As a preliminary matter, wife argues that the trial court erred by failing to require 

supplemental discovery. She argues that this hindered her ability to adequately prepare 

for trial. The record indicates that, on May 3, 2018, wife filed a motion to set the matter 

for trial. On May 24, 2018, the trial court entered an order stating that the parties had 

agreed to set the trial for August 8, 2018 as to all issues. At trial, when asked by the 

court, wife stated that there were no preliminary matters to be considered by the court. 

Wife raised the discovery issue to the trial court in her motion to alter or amend. The 

court held that 

[a]dditionally as grounds Plaintiff seeks to raise a discovery 

issue which the Court determines is also improper for a 

motion filed pursuant to Rules 52 and 59. Further Plaintiff 

inaccurately asserts this Court “sustained Defendant’s Motion 
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to Quash a subpoena for Defendant’s testimony.” However, 

this Court did NOT quash the Defendant’s deposition 

subpoena. Rather the Court, by Order entered March 28, 

2018, merely ruled that Defendant did not have to produce 

“certain documents” at his deposition. Additionally, the 

Court notes that on May 3, 2018, Plaintiff was the party that 

moved to set the case for trial. Further, the case was set by 

Order entered May 29, 2018 by agreement of the Parties. 

Plaintiff never filed a motion to continue in order to depose 

Defendant. If Plaintiff failed to depose Defendant, that was 

her choice. 

Accordingly the Plaintiff’s motion to alter or amend the Final 

Decree entered September 28, 2018 is DENIED in its 

entirety.

(Emphasis in original). 

Based on the foregoing, the record does not indicate that wife’s ability to prepare 

for trial was hindered due to a “lack of reasonable discovery.” Instead, it indicates that 

wife chose to set this matter for trial, and later consented to the trial date. The decision to 

proceed to trial with the information then obtained was wife’s prerogative. Accordingly, 

we hold that the trial court did not err in its holding on this issue. 

V.

A.

On appeal, wife argues that husband failed to sufficiently specify wife’s adulterous 

and inappropriate marital conduct sufficient to grant the divorce on these grounds. We 

disagree. The trial court heard extensive testimony on this issue, and found husband to be

the credible witness. As noted elsewhere in this opinion, the trial court’s determinations 

regarding witness credibility are entitled to great weight on appeal and shall not be 

disturbed absent clear and convincing evidence to the contrary. See Morrison v. Allen, 

338 S.W.3d 417, 426 (Tenn. 2011). Husband testified that:

Q: Have there been times when you did not seek medical 

care because you didn’t have the money upfront?

A: Very regretfully, yes.

Q: Did you go to your wife to request it?
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A: Yes.

Q: What was her response?

A: You come up with the deductible. That’s your 

problem.

Q: How recently was that?

A: As recently as the past month, but I’ve heard it often 

over the last ten years.

* * *

Q: What is her treatment of you?

A: Disrespectful at best.

Q: How does she treat you in front of other couples?

A: She humiliates me.

Q: Give the Court an example of how she has done that.

A: There are many examples. Years ago when we were 

visiting friends and family and the friends would ask 

how is your German coming along; I said, not bad, it’s 

pretty good. She said, he never understands anything. 

He can’t translate anything. He doesn’t know it that 

well. It’s little putdowns like that. We were invited to 

my neighbor’s house for a New Year’s Eve dinner. In 

Germany New Year’s is almost like Thanksgiving. 

They say, what do you wish for in the new year, 

Diane? She would say, for a rich German man. 

Everyone laughs it off, but it’s kind of hurtful and 

disrespectful. She says it in front of me. There have 

been other times as well.

* * *
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Q: Okay. Well, can you think of any other specific 

examples of things that Mrs. Barron would say to you 

in front of your children?

A: Mostly demeaning things that degrade my character or 

worth in the household.

Q: I’m trying to ask for the words she used. If there’s any 

profanities, you spell it or you just say the first letter, 

whatever the Court -- the first letter is sufficient.

A: It’s difficult to say. Well, when I inquired about 

marital intimacy or our life in the bedroom, she said 

she did not want to have relations with me. She said 

you have no D-I-C-K. I’m F’g someone with a D-I-CK. You have no D-I-C-K. That was one I remember 

that was quite hurtful.

Q: When did you go through chemotherapy treatment?

A: In 2015 and 2016.

Q: Tell the Court Mrs. Barron’s involvement in that 

treatment and your recovery.

A: Well, there was almost no involvement. She did go 

with me to the pharmacy one day and use the credit 

card to pick up the drugs. That was at -- after the 

cancer surgery, I was in -- it was complicated, so I was 

in the hospital for three weeks. We had to meet with 

the oncologist, and they asked that a family member be 

there to discuss the treatment, to have someone with 

you, and we waited for over an hour. She said she 

would come, but she didn’t come because she was 

angry with me for some reason, so I went back the 

next day and just did it on my own.

Then she took a vacation that summer, and she left. I 

didn’t have access to a credit card or money at that 

time to acquire the medication necessary. So I asked 

my son for the credit card that he had access to, and I 
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was able to get the medication with that, Xeloda it was 

called.

Q: Is this before or after you had the proceeds from the 

Darmstadt house?

A: It was before. That would have been in July of -- no. 

I'm sorry -- yes, July of ‘15.

* * *

Q: Did you ask Mrs. Barron for financial assistance for 

your medical needs?

A: Yes, I did.

Q: What was her response?

A: No, she’s leaving on vacation. She left and took my 

youngest son with her on that trip.

Husband testified regarding wife’s insensitivity to his emotional and health needs, to how 

she lacked an interest in his wellbeing, and how she regularly engaged in demeaning 

speech. In his testimony at trial, husband specified instances of wife’s adulterous, aloof,

and demeaning conduct, which the trial court found to be credible. The record indicates 

that wife shut husband out of her life to the extent that she put a literal lock on her 

bedroom door. Wife did not address the issue of adultery at trial. 

The trial judge saw the witnesses and heard them testify, and had the opportunity, 

denied to this Court, of observing their manner and demeanor while testifying. As this 

Court has stated, “the finding of the [trial judge] is entitled to great weight when [she]

saw the witnesses face to face and heard them testify [] and this is peculiarly true where 

[] the determination of the issues of fact depends, in large measure, upon the comparative 

credibility of the two adversary parties to the suit.” See Troutt v. Troutt, 35 Tenn. App. 

617, 626, 250 S.W.2d 372, 376 (1952) (holding that the offense of adultery may be 

proved by circumstances from which guilt may be reasonably inferred); see also Canning 

v. Canning, 59 Tenn. App. 678, 685, 443 S.W.2d 502, 505 (1968) (holding that adultery 

can be proven by circumstantial evidence; it is not necessary to have direct evidence of 

the illicit intercourse). We hold that the evidence does not preponderate against the trial 

court’s findings as to the grounds for divorce. We affirm the granting of a divorce on the 

grounds of wife’s adultery and wife’s inappropriate marital conduct. 
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B.

“Trial courts have broad discretion to determine whether spousal support is needed 

and, if so, the appropriate type of alimony, amount, and duration.” Neamtu v. Neamtu,

2009 WL 152540, at *5 (Tenn. Ct. App. Jan. 21, 2009) (citing Wynns v. Wynns, 2008 

WL 4415786, at *2 (Tenn. Ct. App. Sept. 26, 2008)). Appellate courts are, therefore, 

reluctant to second guess a trial court’s decision regarding alimony “unless it is not 

supported by the evidence or is contrary to the public policy embodied in the applicable 

statutes.” Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994) (citations 

omitted). Tenn. Code Ann. § 36-5-121(g)(1) states that

Transitional alimony means a sum of money payable by one 

(1) party to, or on behalf of, the other party for a determinate 

period of time. Transitional alimony is awarded when the 

court finds that rehabilitation is not necessary, but the 

economically disadvantaged spouse needs assistance to adjust 

to the economic consequences of a divorce, legal separation 

or other proceeding where spousal support may be awarded, 

such as a petition for an order of protection.

Tenn. Code Ann. § 36-5-121(g)(1).

In addressing whether or not to award alimony, the trial court considered the 

factors enumerated in Tenn. Code Ann. § 36-5-121(i). The court determined that wife has 

the greater earning capacity. She makes $88,000 a year in addition to her housing and 

cost of living allowances. Husband has not been employed since 2005, and instead has 

functioned as a homemaker. Husband has recently gone through chemotherapy and 

undergone a hernia surgery; at best, he can only work a sedentary job. Wife instead 

enjoys good health. In addition, the trial court stated that “it is appropriate to attribute 

fault and [to hold] that [w]ife caused the demise of the marriage.” Ultimately, the court 

held that “[h]usband is the disadvantaged spouse and that [w]ife has the ability to pay 

alimony.” 

It is important to reiterate that the trial court held it will be difficult for husband to 

find employment in Germany, once the divorce is entered, due to an established hierarchy 

for obtaining US government employment overseas. Because husband will not be able to 

obtain employment in Germany, and will no longer be a spouse of a government 

employee, he will lose his residency status and will only be able to remain in Germany 

for three months following the divorce. Therefore, the record indicates that husband is 

going to have to make an intercontinental move in order to re-establish himself in the 

United States following the divorce. Accordingly, the court stated that husband will need 

financial support in order to “come to America to establish and maintain a household and 
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to adjust to the economic consequences of the divorce.[] The [c]ourt is aware that it may 

take some time before the Thrift Savings Fund can be transferred to [h]usband.” 

Despite the foregoing, the court only awarded husband one year of transitional 

alimony at $2,000 per month. The court’s conclusion as to the duration of transitional 

alimony necessary for husband, the economically disadvantaged spouse, to adjust to the 

economic consequences of divorce does not comport with its factual findings. The 

evidence preponderates in favor of husband needing a longer duration of transitional 

alimony. Therefore, we hold that the trial court erred by awarding husband only one year 

of transitional alimony. We hold that the duration of the trial court’s award is insufficient 

and will result in an injustice to husband. Accordingly, we modify the trial court’s 

holding in order to extend the duration of transitional alimony; we hold that wife is to pay 

husband $2,000 per month in transitional alimony for a period of five years. In order to 

ensure clarity, we do not disturb the trial court’s holding that wife is to also maintain 

husband’s health insurance until he reaches the age of 65. 

C.

On appeal, husband argues that the trial court erred by awarding a larger portion of 

the net marital assets to wife. He argues that, if anything, the court’s factual findings 

support a larger award to husband than to wife. Husband argues that the trial court’s 

rationale that the division was ultimately equitable, based upon the alimony and 

attorney’s fees awards to husband, was error:

The trial court erred in its legal reasoning for providing [w]ife 

more of the assets. There is no law to support that the trial 

court may use the alimony award or award of attorney’s fees 

as alimony as a reason for the disparate division of assets and 

liabilities to one party. Even if the trial court could consider 

those items, a total award of $24,000 in alimony and less than 

$20,000 of alimony in solido for attorney’s fees does not even 

provide [h]usband an equal amount of marital assets, much 

less an equitable amount of marital assets. As such the trial 

court’s legal reasoning is a ‘misapplication of statutory 

requirements and procedures’ as described in Herrera, and 

the division should be amended to provide [h]usband one-half 

of the FERS Pension Account.

We agree with the trial court that the distribution must be equitable, but not necessarily 

equal. However, in the present matter, the trial court did not clearly elucidate why it 

believes that its legal conclusions as to the distribution of the net marital assets was 

equitable in light of its factual findings. We believe that it was not. 
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In making equitable division of marital property, Tenn. Code Ann. § 36-4-121(c) 

instructs that 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) (A) 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;

(B) For purposes of this subdivision (c)(5), 

dissipation of assets means wasteful 

expenditures which reduce the marital property 

available for equitable distributions and which 

are made for a purpose contrary to the marriage 

either before or after a complaint for divorce or 

legal separation has been filed.

(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;
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(10) In determining the value of an interest in a closely held 

business or similar asset, all relevant evidence, including 

valuation methods typically used with regard to 

such assets without regard to whether the sale of 

the asset is reasonably foreseeable. Depending on the 

characteristics of the asset, such considerations could 

include, but would not be limited to, a lack of 

marketability discount, a discount for lack of control, and 

a control premium, if any should be relevant and 

supported by the evidence;

(11) The amount of social security benefits available to 

each spouse; and

(12) Such other factors as are necessary to consider 

the equities between the parties.

Tenn. Code Ann. § 36-4-121(c).

When considering the above factors, the trial court held that the parties had been 

married for twenty-six years at the time of the complaint for divorce. Both parties are in 

their sixties. Husband has serious and potentially critical health issues; wife enjoys good

health. Husband is only able to work a sedentary job, and it is highly unlikely that he will 

be able to remain in Germany following the divorce, and even less likely that he will be 

able to find a job. Wife’s residency in Germany is stable, due to her present employment. 

Her present employment provides her with a sizeable income and a housing allowance 

that covers her utilities and insurance. Husband has a bachelor’s degree; however, he has 

not worked since 2005. Wife has maintained employment throughout the marriage; the 

trial court determined that husband’s status as a homemaker substantially contributed to 

the marriage, and allowed wife to increase her earning capacity. The court determined 

that both parties had contributed to the acquisition of marital property and development 

of the household; wife’s contributions were primarily financial, while husband’s was 

primarily, but not exclusively, in his capacity as a homemaker. Tennessee law 

specifically recognizes that substantial contribution to a household can be made in the 

capacity of a homemaker. See Tenn. Code Ann. § 36-4-121(b)(1)(D) (stating that 

“substantial contribution” may include, but not be limited to, the direct or indirect 

contribution of a spouse as a homemaker). In addition, the court held that wife had 

dissipated some of the marital assets. The trial court explicitly held that “[h]usband has 

the greater financial need.” The court also held that “[w]ife has the greater ability for 

future acquisition of capital assets and income as she is still employed.”

In light of the foregoing findings of fact made by the trial court, we hold that the 

evidence preponderates against the court’s conclusion to award wife a greater share of the 
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marital assets. The court’s conclusion to award husband only 43% of the marital assets 

and wife 57% was in error and not equitable. Accordingly, we modify the division of net 

marital assets such that the Roth IRA is split 50/50 between husband and wife. The 

record indicates that the Roth IRA was accumulated during the marriage and is therefore 

marital property and a proper subject of division. The addition of 50% of the Roth IRA to 

husband’s net marital assets increases his net marital assets awarded to 48.3% at 

$618,000; it renders wife’s awarded net marital assets 51.7% of the net marital assets at 

$661,000. 

In addition, the trial court held that the FERS pension account is a marital asset; it 

awarded wife 100% of the account. The court stated that the pension would amount to 

retirement benefits “of approximately $2,000 a month.” The pension was awarded to wife 

in addition to her portion of the net marital assets.

The trial court failed to elucidate why this award to wife was equitable in light of 

its factual findings. Husband argues that the decision to award the entirety of the FERS 

pension account to wife was in error. He argues that this award of approximately $2,000 

a month to wife resulted in a windfall in her favor, and that, when factored into the total 

awarded assets, substantially alters the percentage distribution in favor of wife and is not 

equitable. 

We agree with husband that the decision to award wife 100% of the FERS pension 

account was not equitable in light of the factual findings. In order to ensure that the 

division of the net marital assets remains equitable, we hold that the FERS pension is to 

be divided in proportion to this Court’s decision as to the division of the other net marital 

assets. Accordingly, we hold that husband is to receive 48.3% of the FERS pension 

payout once the pension payout commences; wife is to receive 51.7% of the FERS 

pension payout once the pension payout commences. 

D.

Husband requests this Court award him his attorney’s fees on appeal. This Court 

stated, in Koja v. Koja, that

As with any alimony award, in deciding whether to award 

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

consider the relevant factors enumerated in [Tenn. Code 

Ann.] § 36–5–101(d). A spouse with adequate property and 

income is not entitled to an award of alimony to pay 

attorney’s fees and expenses. Where a spouse has property 

and income adequate for her needs, it may not be proper for 

the trial court to make an additional award of alimony in 

solido for payment of the wife’s attorney’s fees. “These 
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awards are appropriate, however, only when the spouse 

seeking them lacks sufficient funds to pay his or her own 

legal expenses,” or would be required to “deplete his or her 

resources in order to pay these expenses.” Where one party 

has been awarded additional funds for maintenance and 

support and such funds are intended to provide the party with 

a source of future income, the party need not be required to 

pay legal expenses by using assets that will provide for future 

income.

Koja v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000) (internal citations omitted). It is 

clear that husband would be required to deplete his awarded resources in order to pay his 

attorney’s fees on appeal. Additionally, as stated infra, wife has been paying her 

attorney’s fees with marital assets. Therefore, we hold that this is a proper instance in 

which to order wife to pay husband’s reasonable attorney’s fees and costs incurred on 

appeal, in addition to the attorney’s fees awarded by the trial court, as alimony in solido. 

This matter is remanded to the trial court for the sole issue of setting the amount of 

husband’s attorney’s fees accrued on appeal.

V.

Lastly, husband filed an execution of garnishment. Wife filed a motion for stay of 

execution, or to quash the garnishment. In response, husband filed a motion stating that 

wife has failed to pay any alimony, as ordered; has paid no attorney’s fees, as ordered; 

has failed to transfer the $65,000 in the form of the Community Nation Account, as 

ordered; and has failed to transfer the Thrift Savings Account, as ordered. In addition, 

husband stated that wife has instead used the divorce as “a weapon” and has advised the 

government that husband is no longer married to her; this had the effect of revoking his 

status as a dependent, preventing him from using the commissary, and has placed his 

status in Germany in jeopardy. On June 3, 2019, the trial court entered an order staying 

the execution of the garnishment. On appeal, husband asks that we remove this 

impediment. Given husband’s precarious situation, and seeing no reason for further 

delay, we vacate the trial court’s order staying execution of the garnishment. 

VI.

The judgment of the trial court is modified, and, as such, is affirmed. Costs on 

appeal are taxed to the appellee, Ruby Diane Barron. This matter is remanded to the trial 

court to set the amount of attorney’s fees accrued on appeal and for collection of costs 

assessed below.

_______________________________

CHARLES D. SUSANO, JR., JUDGE