IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 26, 2016 Session1

MATTHEW WHEELER MABIE, M.D. v. CARLA JENNINGS MABIE

Direct Appeal from the Circuit Court for Shelby County

No. CT-005633-11 Gina C. Higgins, Judge

No. W2015-01699-COA-R3-CV – Filed January 9, 2017

This case arises out of a divorce action. After fourteen years of marriage, the husband 

filed a complaint for divorce. Following a brief and unsuccessful attempt at 

reconciliation, the wife filed a counter-claim for divorce. Throughout the marriage, the 

husband worked as a medical doctor and was a partner in a highly successful medical 

practice. The wife‟s primary role in the family was as a stay-at-home mother. The trial 

court declared the parties divorced and awarded the wife, among other things, 

rehabilitative alimony, alimony in futuro, and attorney‟s fees. The husband appeals the 

trial court‟s awards of alimony, the valuation of his interest in his medical practice, the 

award of attorney‟s fees to the wife, and the court‟s decision to not punish the wife for 

civil contempt of court. The wife seeks attorney‟s fees for defending this appeal. 

Discerning no reversible error, we affirm the judgment of the trial court. We deny the 

wife‟s request for attorney‟s fees on appeal.

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

Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN 

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Kay Farese Turner and Emily Hamm Huseth, Memphis, Tennessee, for the appellant, 

Matthew Wheeler Mabie, M.D.

Mitchell David Moskovitz, Adam Noah Cohen and Zachary Michael Moore, Memphis, 

Tennessee, for the appellee, Carla Jennings Mabie.

 

1Oral argument in this case was heard at Union University in Jackson, Tennessee.
2

OPINION

I. FACTS & PROCEDURAL HISTORY

Matthew Wheeler Mabie, M.D. (“Husband”) married Carla Jennings Mabie 

(“Wife”) on June 7, 1997. Two minor children were born of the marriage: a daughter, 

age thirteen at the time of trial, and a son, age six at the time of trial, which was in May 

2013. Both children attended private schools in Memphis and were involved in 

demanding and expensive extra-curricular activities. 

Husband and Wife were both age forty-one at the time of trial and age forty-three 

at the time of the court‟s ruling. Wife attained a Bachelor of Science degree in 

communications prior to the marriage, but she had not worked outside of the home since 

the birth of the parties‟ son in 2004. Prior to that, Wife worked off-and-on and was able 

to earn her real estate license. Working as a realtor, Wife earned approximately $40,000-

$45,000 per year. However, by agreement of the parties, she had not been employed in 

any capacity for nearly ten years.

Husband graduated from medical school on the same day that he and Wife were 

married. He worked throughout the marriage as a medical doctor, and he began to work 

as an employee at Mid-South Pulmonary Specialists (“MSPS”) in 2004. Husband 

became a partner in MSPS in 2007. Husband‟s employment and business interest in 

MSPS was a lucrative one for the family over the years, with his income in the three 

years prior to trial being (approximately) $890,000 in 2010, $818,000 in 2011, and 

$950,000 in 2012. This afforded the family a high standard of living that included 

private school educations for their children, expensive extra-curricular activities for the 

children, two homes in Memphis and a lake house in Arkansas, a boat, and vacations to 

Mexico, Canada, and elsewhere. 

The parties‟ marriage had been troubled for many years. Husband moved out of 

the marital residence in November 2011 and filed a complaint for divorce on December 

19, 2011. In his complaint, Husband alleged that Wife was guilty of inappropriate 

marital conduct and that irreconcilable differences had arisen in the marriage that would 

prevent the parties from living together as husband and wife. Husband requested that he 

be named “co-Primary Residential Parent” of both children. He also prayed for an 

equitable division of marital debts and property, the marital residence, including all 

furniture, for his separate property, and for attorney‟s fees, court costs and litigation 

expenses.

On January 27, 2012, both parties consented to an order of reconciliation pursuant 

to Tennessee Code Annotated section 36-4-126. In that order, Husband and Wife agreed 
3

that Wife would maintain exclusive use of the martial residence and that the couple 

would continue with counseling during the six month suspension of the divorce 

proceedings. The attempt at reconciliation failed, and on June 22, 2012, the parties filed 

a consent order setting aside the order of reconciliation and resuming the discovery 

process.

 

On December 20, 2012, Wife filed an answer to Husband‟s complaint and a 

counter-complaint for divorce. Wife admitted to Husband‟s allegation of irreconcilable 

differences but alleged that he was the one guilty of inappropriate marital conduct. Wife 

requested that she be awarded alimony, attorney‟s fees, suit expenses, both temporarily 

and permanently, and that the court would make an equitable division of the marital 

property and debt between the parties. Wife also prayed that she be named the primary 

residential parent of the parties‟ children. Husband responded by amending his 

complaint to ask that the court name him primary residential parent of the children, rather 

than co-primary residential parent as he had originally requested. Wife answered this 

amended complaint and asked the court to deny Husband‟s request. 

On March 7, 2013, Husband petitioned the court to hold Wife in civil contempt 

based on allegations that she had violated the mandatory injunction set forth in Tennessee 

Code Annotated section 36-4-106. Husband alleged that Wife had taken several different 

amounts, including one lump sum of $50,000, out of the parties‟ Morgan Stanley account 

without Husband‟s knowledge, and he requested that the Court charge these amounts 

against Wife‟s ultimate division of marital property. In May of 2013, Wife filed her own 

motion for contempt against Husband alleging that he was making disparaging comments 

about her to the children. The parties consented to an order that prevented them from 

talking badly about one another in front of the kids. Otherwise, regarding the children, it 

appears that the parties worked things out fairly well between themselves. There was 

never a guardian ad litem appointed for the children during the divorce, and no issues 

related to the children are on appeal.

On March 25, 2013, Wife filed a motion pendente lite for child support, alimony, 

and attorney‟s fees. This motion was heard over the course of two days by a divorce 

referee. Ultimately, the referee ordered Husband to pay Wife the sum of $10,000 per 

month throughout the pendency of the divorce proceedings, as well as other specific 

expenses relative to the children and the marital estate. The $10,000 amount included 

$3,200 in child support and $6,800 in transitional alimony to Wife. Husband was also 

ordered to pay $25,000 of Wife‟s interim attorney‟s fees. Neither party appealed the 

ruling of the divorce referee, and it was confirmed by the trial court on May 10, 2013. 

The divorce case was tried over three days on May 15, 16, and 20, 2013. The trial 

court heard a substantial amount of testimony, including testimony from Husband, Wife, 
4

experts for both sides, husband‟s mistress, and the parties‟ children, as well as being

given evidentiary depositions and multiple trial memos and exhibits for review. At trial, 

Husband based his grounds for divorce on Wife‟s spending habits, her alleged 

harassment of him at work, and on multiple verbal and physical altercations. Wife based 

her grounds for divorce on Husband‟s infidelity and several verbal altercations between 

the parties.

On April 2, 2015, nearly two years after the trial concluded, Husband and Wife 

jointly moved the trial court to render a ruling on all pending issues and to enter a final 

decree of divorce. On May 4, 2015, the trial court issued an oral ruling on some of the 

items at issue in the divorce. At the conclusion of that proceeding, the trial court charged 

the parties and their counsel with assigning numerical values to various items of personal 

property in the marital estate. The court then stated:

That leaves only the award of an attorney fee. And contingent upon 

how the breakdown plays out, how the division actually works out after the 

Court looks at the values assigned to those personal property items along 

with the accounts, the stocks, the bonuses, the Court will make its final 

determination as to what it‟s going to do with the attorney fee. 

On May 20, 2015, the parties reconvened before the court so that it could complete 

its ruling on the outstanding issues. At this time, the trial court confirmed some portions 

of its initial ruling and supplemented others, including dividing bank accounts, vehicles, 

and other items of personalty. Ultimately, the trial court found the entire marital estate to 

be valued at $3,185,379, of which Husband was awarded $1,551,690 and Wife was 

awarded $1,064,581. Furthermore, the trial court awarded Wife $6,000 per month in 

rehabilitative alimony for three years and $5,000 per month of alimony in futuro. The 

award of alimony in futuro was ordered to be paid concurrently with the rehabilitative 

alimony. The trial court entered a written final decree of divorce on August 10, 2015, 

and incorporated by reference the transcripts from the May 4, 2015 and May 20, 2015 

rulings. On August 10, 2015, the trial court entered a permanent parenting plan 

designating Wife as the primary residential parent and requiring Husband to pay $3,200 

per month in child support. In addition to that sum, Husband is required to pay other 

expenses related to the children. Husband has not appealed the trial court‟s ruling with 

regard to parenting time or child support. 

II. ISSUES PRESENTED

Husband presents the following issues for review on appeal: 

1. Whether the trial court erred in awarding rehabilitative alimony and 
5

alimony in futuro to Wife; 

2. Whether the trial court erred in its valuation of Husband‟s business 

interest in MSPS;

3. Whether the trial court erred in awarding attorney‟s fees to Wife;

4. Whether the trial court erred in not charging Wife for civil contempt.

We note that Husband‟s brief is replete with sub-issues and arguments that are only 

tangentially related to the issues stated above. We pass on the offer to crawl down each 

rabbit hole presented by Husband, and rather we direct our attention to those issues 

properly before us on appeal.

Wife presents the following additional issue for review on appeal:

5. Whether Wife should be granted attorney‟s fees for defending 

Husband‟s appeal.

III. DISCUSSION

This case was tried by the trial court without a jury. We therefore review the trial 

court‟s findings of fact de novo with a presumption of correctness unless the evidence 

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

685, 692 (Tenn. 2013). Also, because the trial court has the opportunity to observe the 

demeanor of the witnesses and hear the in-court testimony, “[w]e afford „considerable 

deference‟ to the trial court‟s determinations of credibility and the weight given to oral 

testimony.” Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App. 2010). We 

review the trial court‟s conclusions of law de novo with no presumption of correctness. 

Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003).

A. Award of Spousal Support

As a preliminary issue, Husband asserts that the trial court‟s order awarding 

alimony contains insufficient findings of fact as to Wife‟s need in order to affirm the 

award on appeal. As this Court has repeatedly opined, Rule 52.01 of the Tennessee Rules 

of Civil Procedure requires written findings of fact and conclusions of law in a final 

judgment resulting from a trial without a jury. See Tenn. R. Civ. P. 52.01. Indeed, we 

recognize that the ruling of the trial court is not the gold standard for findings of fact and 

conclusions of law as it relates to Wife‟s need for spousal support. Nevertheless, because 

the trial court‟s reasoning is evident to some extent from its oral and written rulings, and 
6

because it is clearly supported by the record, we choose to exercise our discretion and 

proceed to consider the merits of the alimony award. See Hanson v. J.C. Hobbs Co., No. 

W2011-02523-COA-R3-CV, 2012 WL 5873582, at *10 (Tenn. Ct. App. Nov. 21, 2012) 

(we may “soldier on” with our review when the trial court‟s reasoning is “readily 

ascertainable”).

 

The Tennessee Supreme Court has articulated a deferential standard of review 

applicable to a trial court‟s decision on matters of alimony:

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

courts should be accorded wide discretion in determining matters of spousal 

support. See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846) 

(“Upon a divorce . . . the wife is entitled to a fair portion of her husband‟s 

estate for her support, and the amount thus to be appropriated is a matter 

within the legal discretion of the chancellor . . . .”). This well-established 

principle still holds true today, with this Court repeatedly observing that 

trial courts have broad discretion to determine whether spousal support is 

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

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

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

360 (Tenn. 2000).

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

decision regarding spousal support is factually driven and involves the 

careful balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 

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

Robertson, 76 S.W. 3d 337, 340-41 (Tenn. 2002). As a result, “[a]ppellate 

courts are generally disinclined to second-guess a trial judge‟s spousal 

support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an 

appellate court in reviewing an award of spousal support is to determine 

whether the trial court applied the correct legal standard and reached a 

decision that is not clearly unreasonable.” Broadbent v. Broadbent, 211 

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

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

at 343. An abuse of discretion occurs when the trial court causes an 

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

resolves the case on a clearly erroneous assessment of the evidence, or 

relies on reasoning that causes an injustice. Wright ex rel. Wright v. 

Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 

S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an appellate 

court to substitute its judgment for that of the trial court, but “„reflects an 
7

awareness that the decision being reviewed involved a choice among 

several acceptable alternatives,‟ and thus, „envisions a less rigorous review 

of the lower court‟s decision and a decreased likelihood that the decision 

will be reversed on appeal.‟” Henderson, 318 S.W. 3d at 335 (quoting Lee 

Medical Inc., v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). 

Consequently, when reviewing a discretionary decision by a trial court, 

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

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

favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318 

S.W.3d at 335.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011) (footnote omitted).

Tennessee Code Annotated section 36-5-121(d)(1) outlines the four types of 

spousal support that are recognized under Tennessee law: (1) alimony in futuro, (2) 

alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Relevant to 

the case at bar is the trial court‟s award of alimony in futuro and rehabilitative alimony.2 

At trial, Wife requested that the court award her $15,000 per month in alimony in futuro. 

Ultimately, the trial court awarded Wife $6,000 per month in rehabilitative alimony for 

three years and an award of $5,000 per month of alimony in futuro. The award of 

alimony in futuro was ordered to be paid concurrently with the rehabilitative alimony and 

would terminate upon either party‟s death or Wife‟s remarriage or co-habitation with a 

third party. In explaining this award of alimony, the trial court stated that it considered, 

in relevant part, the following: 

Now, with regard to those factors that the Court has to look at when 

it comes to alimony: Pursuant to TCA 36-5-121 in determining whether the 

granting of an order for payment of support and maintenance to a spouse is 

appropriate . . . .

The Court looked at the relative earning capacity, obligation, needs 

and financial resources of each party, . . . The husband is and continues to 

be the breadwinner. He has not only the greater earning capacity and 

resources, but he has always provided for the family. His income more 

than meets the needs of these parties. . . . 

. . . .

. . . . [This] is now almost a 16-year marriage . . . . 

 

2

The court also awarded Wife attorney‟s fees, which is considered a form of alimony in solido and is 

discussed in Section C below.
8

. . . .

The extent to which it would be undesirable for a party to seek 

employment outside the home . . . . the wife has been [an] at-home mom 

and wife for the last ten years. . . . [T]here are no barriers to her working 

outside the home . . . . 

. . . .

The standard of living of the parties established during this marriage: 

[the] [p]arties lived a good life but not lavish. . . . 

The wife generally was responsible for finances, paying bills, with 

no budget or obvious restrictions except the purchases of new and 

expensive vehicles. 

. . . .

. . . [T]he Court did take into consideration fault of the parties to this 

extent: These parties‟ marriage has been in trouble for many years. The 

husband admits . . . [to] at least one affair . . . with his nurse. . . . but it was 

not the only reason for the demise of this marriage. Some fault has to be 

attributed to Husband for his role in the split and the reason for the 

termination of counseling and reconciliation efforts. . . .

As to need and ability to pay, the wife is economically 

disadvantaged, is in need of support, and the husband has the ability to pay. 

Accordingly, this Court looked at rehabilitation alimony.

As stated above, the trial court awarded Wife $6,000 per month for three years as 

rehabilitative alimony. With regard to rehabilitative alimony, Tennessee Code Annotated 

section 36-5-121(d)(2) states the following:

(2) It is the intent of the general assembly that a spouse, who is 

economically disadvantaged relative to the other spouse, be rehabilitated, 

whenever possible, by the granting of an order for payment of rehabilitative 

alimony. To be rehabilitated means to achieve, with reasonable effort, an 

earning capacity that will permit the economically disadvantaged spouse‟s 

standard of living after the divorce to be reasonably comparable to the 

standard of living enjoyed during the marriage, or to the post-divorce 
9

standard of living expected to be available to the other spouse, considering 

the relevant statutory factors and the equities between the parties. 

Tennessee Code Annotated section 36-5-121(d)(2). The trial court echoed that sentiment 

in stating that 

[r]ehab alimony is favored in Tennessee and is suitable for the facts of this 

case . . . . 

[Wife] should be allowed at least three years for additional education 

and training in any field she desires, with the Court believing that if she has 

any interest, that interest may be in law. The wife is awarded $6,000 a 

month rehab alimony for three years that this Court approves for her to 

make herself capable of full-time, gainful and meaningful employment, i.e., 

if she would like to go to law school, recognizing that will yet be less than 

any earnings of the husband.” (Emphasis added.) 

The trial court then awarded Wife alimony in futuro in the amount of $5,000 per 

month to run concurrently with the aforementioned rehabilitative alimony. Alimony in 

futuro “is intended to provide support on a long-term basis until the death or remarriage 

of the recipient.” Gonsewski, 350 S.W.3d at 107 (citing Tennessee Code Annotated 

section 36-5-121(f)(1)). “An award of alimony in futuro may be made, either in addition 

to an award of rehabilitative alimony, where a spouse may be only partially rehabilitated, 

or instead of an award of rehabilitative alimony, where rehabilitation is not feasible.” 

Tenn. Code Ann. § 36-5-121(d)(4). To that end, the trial court in this case opined that it 

considered transitional alimony and determined that transitional alimony 

was not appropriate for this case; however, the Court did determine that 

alimony in futuro was an appropriate form of alimony. Since rehab 

alimony will not restore Wife to her married status of living, alimony in 

futuro is appropriate. In addition to the above award of rehab alimony . . . 

Wife is awarded an amount of $5,000 per month in futuro. 

We determine the trial court‟s award of both rehabilitative alimony and alimony in 

futuro to be reasonable and supported by the record in this case. With regard to 

rehabilitative alimony, Wife has a bachelor‟s degree and her real estate license, but, by 

agreement of the parties, she had not had gainful employment in nearly a decade. The 

court found $6,000 per month for three years to be a reasonable amount and period of 

time to allow Wife to ready herself to re-enter the work force, possibly by attending law 

school. We do not determine that the trial court applied an incorrect legal standard or 

abused her discretion in making this award. We therefore affirm the trial court‟s award 
10

of rehabilitative alimony.

With respect to alimony in futuro, Wife sought, and attempted to prove with 

expert testimony, that she was in need of $15,000 per month. The trial court found that 

“the wife is economically disadvantaged, is in need of support, and the husband has the 

ability to pay.” The court also found that the Wife could only be partially rehabilitated, 

and she could not be fully restored to the parties‟ standard of living during the marriage, 

and therefore alimony in futuro was appropriate. After hearing the testimony in this case 

and considering the statutory factors relative to alimony, the trial court awarded Wife a 

relatively modest $5,000 per month alimony in futuro. There is no question that Wife is 

the economically disadvantaged spouse. To that end, the trial court found as follows: 

The income of these parties is as such: Wife was not employed 

outside of the home and she last worked outside of the home in 

approximately 2004. Historically, the most she earned was approximately 

40,000 to 45,000 dollars as a realtor. Otherwise, she only worked part time, 

and that was many years ago.

The husband is employed and was employed throughout the 

marriage as a medical doctor. He is a partner at the Mid-South Pulmonary 

Specialists, P.C.

This Court finds that the elicited testimony puts Wife‟s current 

income at approximately zero dollars a month. Testimony evidenced 

Father‟s earnings at about $195,000 as a base salary annually with a median 

income of $72,149.52, extrapolated as a consequence of the following 

earnings: 2010 . . . $860,887; 2011, $784,798; 2012, $951,707. 

From our review of the record we agree with the trial court that Wife can be rehabilitated 

to an extent, but that would never provide her with the standard of living established by 

the parties during the marriage or to Husband‟s post-divorce standard of living. 

Furthermore, given Husband‟s very high monthly income, there is no argument to be 

made that he does not have the ability to pay this amount. In fact, Husband did not raise 

his ability to pay as an issue, or as a sub-issue, on appeal. We affirm the trial court‟s 

award of alimony in futuro.

Husband further asserts that the trial court committed reversible error by awarding 

Wife alimony before dividing all of the parties‟ marital property. Pursuant to Tennessee 

law, the sequence of events in a divorce ruling is that a trial court should first make its 

determinations as to the disposition of the parties‟ marital property before awarding 

alimony because one of the factors to be considered in awarding alimony is the 
11

provisions made with regard to the marital property. See Tenn. Code Ann. § 36-5-

121(i)(8). During the “follow up” ruling on May 20, 2015, the trial court stated as 

follows:

The Court: . . . . I got a letter from Ms. Turner [attorney for Husband] 

indicating that she didn‟t think it was appropriate to submit any additional 

information, and so - - she did make a comment that before I granted 

alimony, I should have completed what I was going to do with the division 

of the other assets.

So to that extent, I went back and reevaluated, not only the division 

of the assets, but I looked at the alimony in conjunction with what‟s what. 

So I want to make it very clear and very plain as to how the assets are going 

to be divided. So that means I‟m going to go back over a couple of them. 

. . . . 

So now, in addition to all of the statutory factors when I sat down and 

reevaluated the issue of alimony, I looked at the wife‟s expected expenses 

when I set the alimony and I have again reviewed those. The alimony will 

stay as ordered.

Although we ultimately hold that the trial court adequately reconsidered its award 

of alimony in light of the complete division of marital assets, we do note that the 

conclusory statements made by the court cited above are not the optimal way for a trial 

court to articulate its determination of a division of assets and award of spousal support. 

However, the trial court did not go so far as to abuse its discretion in this respect. At all 

relevant times, the court had before it ample testimony as to Wife‟s needs and expenses. 

In fact, Mr. Vance made an extremely detailed spreadsheet of Wife‟s needs over the 

remainder of her life expectancy and Husband‟s ability to pay. And, the court opined that 

she re-examined all factors relevant to alimony again before the May 20, 2015 ruling. 

Determining no reversible error, we affirm the trial court‟s award of alimony.

B. Valuation of Husband’s Business Interest

Much of Husband‟s brief on appeal is devoted to his argument that the trial court 

erred in its valuation of Husband‟s business interest in MSPS. On average, Husband‟s 

monthly income was $72,149.52. Husband‟s average annual income was in excess of 

$850,000 per year. After hearing testimony from experts for both parties, the trial court 

chose to adopt Wife‟s expert‟s method of valuation and amount of that value, which set 

Husband‟s business interest at $586,000. Nonetheless, on appeal Husband continues to 
12

assert that his interest in MSPS is worth a mere $8,500. 

The value of marital property is a question of fact. Owens v. Owens, 241 S.W.3d 

478, 486 (Tenn. Ct. App. 2007). “„The value of a marital asset is determined by 

considering all relevant evidence regarding value.‟ If the evidence of value is conflicting, 

the trial judge may assign a value that is within the range of values supported by the 

evidence.” Powell v. Powell, 124 S.W.3d 100, 105-06 (Tenn. Ct. App. 2003). “[A] trial 

court‟s decision with regard to the value of a marital asset will be given great weight on 

appeal.” Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). “[T]he choice 

of the proper method or combination of methods [to determine value] depends on the 

unique circumstances of each corporation.” Id.

Much testimony was given regarding the value of Husband‟s interest in MSPS. At 

the time of trial, MSPS had been in existence since 1989 and was the largest pulmonary 

group in the Memphis area. The group was comprised of twelve or thirteen partners and 

nineteen additional non-partner physicians. In the year immediately preceding trial, 

2012, the gross revenues for the practice was $15,463,277. 

Both parties presented experts who purported to testify as to the “fair market 

value” of Husband‟s interest in MSPS. The expert testimony presented at trial varied 

tremendously, such that the resulting business valuations ranged from $8,500 to $586,000 

in value. In his brief, most of Husband‟s argument related to the valuation of his interest 

in MSPS can be boiled down to an assertion that his expert was right, Wife‟s expert was 

wrong, and that should constitute reversible error. However, Husband‟s argument 

overlooks the general rule that the valuation and distribution of marital assets are 

questions of fact which come to this Court with a presumption of correctness pursuant to 

Tennessee Rule of Appellate Procedure 13(d). See Kinard v. Kinard, 986 S.W.2d 220, 

230-31 (Tenn. Ct. App. 1998).

Husband proffered Judson Cannon as his expert on the value of MSPS. Mr. 

Cannon is a certified public accountant who specializes in health care practices. After 

much back and forth between counsel regarding his credentials as an expert, the trial 

court ultimately determined that it would “accept the witness as an expert . . . and give 

the testimony the weight that the Court feels it deserves.” Mr. Cannon explained that, 

after considering what he deemed to be multiple substantial risks associated with an 

investment in MSPS, including renegotiation of its contracts, etc., Husband‟s interest in 

MSPS was virtually unmarketable at the time. Mr. Cannon therefore turned to what 

Husband could receive if he left MSPS and cashed in his shares. In that event, the 

group‟s mandatory Stock Control Agreement would determine the value of Husband‟s 

interest. Analyzing Husband‟s interest by virtue of the Stock Control Agreement 

includes the net book value of the business, less accounts receivable. According to Mr. 
13

Cannon, the value of MSPS pursuant to the formula in the Stock Control Agreement 

made Husband‟s interest worth $8,500. 

William Robert Vance, Jr., Wife‟s expert, is a certified public accountant and 

business valuation analyst. Mr. Vance testified that he considered “all three of the major 

approaches . . . the market approach, the asset approach and then the income approach” 

when deciding how to value MSPS. Mr. Vance testified at length how he came to the 

conclusion that the income approach, the capitalizations of earnings method, was the 

most applicable to the medical practice at issue, and he ultimately valued Husband‟s 

interest in MSPS to be $586,000. When Mr. Vance was asked why he did not agree that 

Dr. Mabie‟s 1/12th interest in MSPS was worth only $8,500, his response was “Well, I 

think to suggest that someone who can make 700, 800, 900,000 dollars per year 

progressively, that his ownership interest is only worth 8,000 dollars defies logic.” And, 

as we have stated before, a trial judge, as fact finder, is not required to check his or her 

common sense at the door when considering evidence. Eberting v. Eberting, No. E2010-

02471-COA-R3-CV, 2012 WL 605512, at *20 (Tenn. Ct. App. Feb. 27, 2012).

In its ruling, the trial court set forth the following reasoning for its valuation: 

. . . . This Court went back and looked at the testimony, read the 

cases with regard to how this business ought to be valuated. And except for 

what the Court considers is the need to have a value attached to this 

property to ensure that there is equitable division of the assets of these 

parties, the Court was not overly concerned with methodologies used by the 

experts to determine what value they were going to place on the property. . 

. .

. . . .

But having said that, the Court looked at the market approach, the 

asset approach and the income approach, and believed that the appropriate 

manner for this business to have been valued is the income[] approach. 

And the Court‟s going to accept the income[] approach and the value that‟s 

assigned to the business as a consequence of that approach. But that 

becomes an asset awarded to the husband.

In sum, the trial court ultimately adopted Mr. Vance‟s methodology and valuation of the 

business at $586,000. We determine that there is sufficient evidence in the record to 

support the trial court‟s valuation, which was within the range of values presented to it.

Husband also argues that the court committed reversible error by not adequately 
14

considering the Stock Control Agreement in its valuation of MSPS. However, from 

Husband‟s brief it appears his argument is really that the trial court erred in not 

considering the Stock Control Agreement as the only factor relevant to the value of 

MSPS. In Harmon v. Harmon, No. W1998-00841-COA-R3-CV, 2000 WL 286718 

(Tenn. Ct. App. Mar. 2, 2000), this Court took on a similar issue as a case of first 

impression in Tennessee. The Husband in Harmon was a partner physician in a large 

medical group. Harmon, 2000 WL 286718, at *3-4. The by-laws of the entities in which 

he held an interest contained “buy-sell” clauses that set the value of his stock and bound 

shareholders to it in the event of a sale. Id. at *4. The parties in Harmon made similar 

arguments to the parties in this case. The husband in Harmon asserted that his interest in 

the practice should be valued based on his buy-sell agreement with his partners because 

he would be bound by that price in the event of an actual sale of his shares. Id. The wife 

argued that buy-sell agreements are set artificially low, excluding things such as accounts 

receivable and supplies, in order to deter physicians from leaving the clinic. Thus, the 

wife asserted, the buy-sell agreement did not reflect the true value of her husband‟s 

interest in his medical group as a going concern. Id. at *12-15. Ultimately, we held that 

buy-sell agreements may be considered in a business valuation along with any other 

relevant evidence as to value. However, buy-sell agreements, like the Stock Control 

Agreement at issue in this case, are not controlling on the value of a business for 

purposes of a divorce. See id. at *29.

Husband seeks to further denounce the trial court‟s valuation for reaching its 

conclusion “without addressing federal laws affecting medical practices and without 

addressing whether the professional corporation statutes in a „majority‟ of states 

contained provisions that would make the stock control agreement binding on a third 

party.” In particular, Husband asserts that a sale of his interest in MSPS would be 

affected by federal statutes such as the federal Anti-Kickback Statute. However, Wife 

asserts that Husband should not be permitted to make this argument on appeal because 

this was not an issue Husband raised at trial. In response, Husband argues that the 

application of federal statutes, such as the Anti-Kickback Statute, is not something he 

was required to prove at trial because “[t]he existence of this statute is not a factual 

question to be proved by evidence at trial; its existence and application is a question of 

law.” As we have previously stated, the court heard extensive testimony on the valuation 

issue. It is no secret that “[u]nder Tennessee law, issues raised for the first time on 

appeal are waived.” Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996). We therefore 

decline Husband‟s invitation to delve into an analysis of how federal statutes might 

theoretically relate to an actual sale of his medical practice. We also refuse to remand 

this issue to the trial court for it to do so when Husband and his expert failed to raise the 

point when they had the opportunity. “It is axiomatic that parties will not be permitted to 

raise issues on appeal that they did not first raise in the trial court.” Powell v. Cmty. 

Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010) (citations omitted).
15

Pursuant to Tennessee law, the trial court was free to place a value on this marital 

asset that was within the range of evidence submitted. See Wallace, 733 S.W.2d at 107 

(citing In re Marriage of Johnston, Mont. 726 P.2d 322, 325 (1986) and Hein v. Hein,

366 N.W.3d 646, 650 (Minn. App. 1985)). That is precisely what the trial court did in 

this case, and we discern no error in the trial court‟s valuation of Husband‟s business 

interest in MSPS.

C. Trial Court’s Award of Attorney’s Fees to Wife

Pursuant to the final decree of divorce, the trial court ordered that “Husband shall 

be required to pay Wife‟s American Express credit card . . . in the amount of Forty-three 

Thousand Dollars ($43,000), as an award of attorney‟s fees to Wife.” Husband contends 

that the trial court erred in this determination because it did not make a finding that Wife 

was unable to pay her attorney‟s fees or explain how it determined that $43,000.00 was a 

reasonable amount. 

In the context of a divorce, an award of attorney‟s fees is considered an award of 

alimony. Long v. Long, 957 S.W.2d 825, 829 (Tenn. Ct. App. 1997). As we have opined 

above, a trial court is afforded wide discretion in an award of alimony, which in this 

regard is attorney‟s fees, and we will not reverse that decision absent a showing of abuse 

of discretion. See Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). 

In the “follow-up” ruling on May 20, 2015, the trial court took up the issue of 

attorney‟s fees at the same time it was explaining the reasoning behind the alimony award 

to Wife. With regard to attorney‟s fees, the Court opined:

There was a 43,000 or 40-plus-thousand dollar debt on the American 

express card that was assigned to Husband for Husband to be responsible 

for, and that was used to pay attorney fees based upon the expressed 

testimony and statement of the witnesses and statements of the lawyers. So 

the Court awards that debt that Husband‟s going to be responsible for 

Wife‟s attorney fees. Otherwise, Wife will be responsible for her own fee, 

Husband will be responsible for his own attorney fees. 

After reviewing the trial court‟s ruling in its entirety, we believe that the trial court 

established a proper basis for the award of reasonable attorney‟s fees to Wife. Only a 

few sentences before the court awarded these attorney‟s fees to Wife, it explained its 

reasoning for awarding Wife alimony, and these attorney‟s fees are in fact alimony. 

Moreover, at the time the court made the above ruling, the court was fully aware of the 

full division of marital assets and Wife‟s needs and expenses. Based on the entire record, 
16

including Mr. Vance‟s spreadsheet of Wife‟s needs, we hold that the trial court did not 

abuse its discretion in awarding $43,000 in attorney‟s fees to Wife. We therefore affirm 

the trial court‟s award of attorney‟s fees to Wife.

D. Civil Contempt

The final issue Husband presents is whether the trial court committed reversible 

error by failing to punish Wife for civil contempt for withdrawing money from the 

parties‟ joint account in violation of the statutory injunction. The order of the trial court at 

issue relates to the set of mandatory mutual injunctions imposed on parties pursuant to 

Tennessee Code Annotated section 36-4-106 when a divorce is filed. 

During the trial court proceedings, Husband argued that Wife violated the 

mandatory statutory injunctions by taking money out of the parties‟ joint Morgan Stanley 

account without Husband‟s knowledge and spending it on things that were not in keeping 

with the parties‟ normal expenditures. By the same token, Wife alleged that Husband 

violated the same injunction by cancelling her credit card. After hearing the testimony of 

the parties as well as the arguments of counsel, the trial court determined that the Wife 

was in civil contempt for spending money without Husband‟s knowledge, but that 

Husband also violated the injunction when he cancelled Wife‟s American Express card 

after the divorce was filed. To that end, the trial court used its discretion and decided that 

it would “not award any punishment or retribution for the contempt charge. It becomes 

null and void.” Despite the trial court‟s decision, counsel for Husband pressed the issue 

again during the May 4, 2015 ruling, and the court responded as follows:

THE COURT: Well, number one, Ms. Turner, I didn‟t find dissipation. I 

said that she violated the - -

. . . .

- - injunction, right. And the reason I didn‟t do anything about that 

is because he cancelled the credit card based on the testimony that I heard 

from the stand. 

“A trial court‟s decision to hold a party in civil contempt is entitled to great weight 

and this Court will not disturb that determination absent an abuse of discretion.” Beyer v. 

Beyer, 428 S.W.3d 59, 76 (Tenn. Ct. App. 2013) (citing Hawk v. Hawk, 855 S.W.3d 573, 

583 (Tenn. 1993)). After reviewing the record in its entirety, we conclude that the trial 

court did not abuse its discretion in declining to punish Wife for civil contempt. 

E. Attorney’s Fees on Appeal

The determination of whether to award attorney‟s fees on appeal is within the sole 
17

discretion of the appellate court. Moses v. Moses, E2008-00257-COA-R3-CV, 2009 WL 

838105, at *10 (Tenn. Ct. App. Mar. 31, 2009) (no perm. app. filed) (citing Archer v. 

Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). After considering Wife‟s request 

for this Court to award her attorney‟s fees incurred on appeal, we respectfully decline to 

do so.

IV. CONCLUSION

For the foregoing reasons, we affirm the order of the trial court and deny Wife‟s 

request for attorney‟s fees on appeal. Costs of this appeal are taxed to the 

Husband/Appellant, Matthew Wheeler Mabie, M.D., and his surety, for which execution 

may issue if necessary.

_________________________________ 

BRANDON O. GIBSON, JUDGE