IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 10, 2012 Session
HAROLD DEAN MCDANIEL v. KIMBERLY RUTH MCDANIEL
Appeal from the Circuit Court for Hamilton County
No. 07D183 Neil Thomas, Judge
No. E2012-00007-COA-R3-CV-FILED-JANUARY 30, 2013
This appeal arises from a divorce. Harold Dean McDaniel (“Husband”) sued Kimberly Ruth
McDaniel (“Wife”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”).
After a long and contentious legal battle, including an earlier appeal to this Court and
subsequent remand for a new trial, the Trial Court entered its supplemental final decree of
divorce. Wife appeals, raising a number of issues. We hold that the Trial Court did not
adequately compute child support, and, therefore remand for its proper computation. We also
modify the allocation of guardian ad litem fees. Otherwise, we affirm the judgment of the
Trial Court. We affirm the judgment of the Trial Court as modified, in part, and vacated, in
part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
Modified, in part, and, Vacated, in part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., P.J., and JOHN W. M CC LARTY, J., joined.
Samuel F. Robinson III, Chattanooga, Tennessee, for the appellant, Kimberly Ruth
McDaniel.
James D. R. Roberts, Jr., and, Janet L. Layman, Nashville, Tennessee, for the appellee,
Harold Dean McDaniel.
OPINION
Background
Husband sued Wife for divorce in January 2007. Husband alleged that Wife
was guilty of inappropriate marital conduct. Numerous hearings were conducted over the
course of more than a year. In December of 2008, the Trial Court entered its final decree
nunc pro tunc to July 2008 granting, among other things, Husband a divorce. Wife appealed
to this Court. In McDaniel v. McDaniel, No. E2009-00447-COA-R3-CV, 2010 WL 2134146
(Tenn. Ct. App. May 27, 2010), no appl. perm. appeal filed, we affirmed the judgment of the
Trial Court with respect to its having awarded Husband a divorce on the basis of Wife’s
inappropriate marital conduct. We, however, held that the Trial Court erred in considering
the contents of an unlawfully obtained audio tape featuring Wife. The tape had proved
heavily damaging to Wife’s credibility, and it appeared that the Trial Court’s judgment was
tainted by the tape’s admission. Thus, in McDaniel, we vacated the remainder of the Trial
Court’s judgment with respect to Husband and Wife and remanded for a new trial.
On remand, the parties proceeded with a new trial. The parties stipulated to
the evidence from the earlier trial, and additional evidence was presented to the Trial Court.
The record in this case is relatively large with much of it not germane to the issues now on
appeal.1 We will confine our review of the background in this case to those facts relevant
to the issues now on appeal.
The parties were married in 1997. Wife had three children from a previous
marriage: Mark, Kris, and Marilyn. Wife and Husband had three children during their
marriage: Zachary, Jacob and Malorie. A major impetus for the divorce was an affair that
Wife had with one Chris Lawson. In the course of the litigation, Wife admitted that she had
a brief affair with Mr. Lawson. For her part, Wife alleged sexual abuse by Husband against
one of the children. The record contains a variety of exhibits pertaining to these allegations
of abuse, but the allegations apparently did not result in any action taken against Husband.
The Trial Court, in a 2009 memorandum and order, blamed Wife for prolonging the litigation
and found her claims of sexual abuse against Husband to be “totally unfounded.” Another
source of contention and much testimony in this case was the question of Husband’s temper.
Several witnesses testified to incidents purporting to show Husband’s violent temper. For
example, Stephanie Buchanan, a waitress at Ryan’s restaurant, testified about one such
incident. According to Ms. Buchanan, she saw Husband essentially throw a child in the car
and close the door on her legs. Husband disputed allegations that he engaged in any abuse.
1
For instance, there are numerous pages of testimony devoted to whether Wife continued to smoke
cigarettes, specific instances of when Wife smoked, and whether Wife smoked around the children.
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One of the issues now on appeal concerns the marital home and Wife’s
contributions towards it. The parties’ marital residence was located at Colonial Way in
Hamilton County. The marital residence was purchased with the assistance of funds
contributed by Wife in the amount of $83,613.71. These funds became available as a result
of Wife’s having sold her house owned by Wife before the marriage. Wife testified that she
and Husband had an agreement whereby her money used for the marital residence would
belong to Wife separately. Husband, on the other hand, testified that he had no agreement
with Wife that the funds generated from the sale of Wife’s house were intended to remain
Wife’s separate property. Husband stated that he wished that neither he nor Wife would
make a claim to those funds, but rather they should be “for the children.” With respect to
incomes, Wife testified that her monthly income was $3,952.00 at the time of trial. Husband
testified that his monthly income was $5,165.33.
In a hearing following the remand of this case, John Gentry (“Gentry”)
testified. Gentry’s testimony addressed Wife’s lifestyle. Wife’s counsel registered some
disquiet about the calling of Gentry to testify, as Wife’s counsel alleged that Husband had
failed to provide a witness list ten days before trial as required by the local rule. The Trial
Court permitted the testimony of Gentry to proceed. Gentry, a stepson of Wife’s prior ex-
husband, stated that he lived with Wife for two months. Gentry’s testimony portrayed Wife’s
conduct in a highly negative light, including allegations of marijuana use and underage
drinking in Wife’s home. Gentry also testified to Wife’s use of methamphetamine and her
abuse of prescription medication.
In December of 2011, the Trial Court entered its supplemental final decree of
2
divorce , finding and holding in relevant part: 1) Wife was to pay $960.00 in child support
per month, with an arrearage of $44,630.00; 2) Wife was ordered to pay Husband $25,000
in attorney’s fees; and, 3) Wife was ordered to pay guardian ad litem fees of $5,875.14. Wife
appeals to this court.
Discussion
Though not stated exactly as such, Wife raises five issues on appeal: 1) whether
the Trial Court erred in admitting the testimony of Gentry despite Husband’s noncompliance
with the Trial Court’s local rules; 2) whether the Trial Court erred in not giving Wife credit
for the contribution she made to the purchase of the parties’ marital home with her pre-
2
The Trial Court incorporated its earlier final order of 2008 into the new supplemental decree, but
went to great lengths to emphasize that this time it was in no way relying on the audio tape that caused the
first judgment to be vacated. The 2008 order also awarded Husband the marital residence, with a net equity
of $150,000, and required him to pay $75,000 to Wife.
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marital assets; 3) whether the Trial Court erred in its computation of child support; 4)
whether the Trial Court erred in its award of attorney’s fees; and, 5) whether the Trial Court
erred in assessing guardian ad litem fees against Wife.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the Trial Court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.
2001). A trial court's conclusions of law are subject to a de novo review with no presumption
of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn. 2001).
We first address whether the Trial Court erred in admitting the testimony of
John Gentry despite Husband’s noncompliance with the Trial Court’s local rules. Local Rule
8.02(c) in Hamilton County requires that a witness or exhibit list be filed 10 days before trial.
Otherwise, the witnesses or exhibits are not to be utilized pursuant to the rule. Wife argues
that she was unfairly surprised by the calling of Gentry as a witness due to Husband’s failure
to comply with the rule, and thus, the Trial Court erred by allowing Gentry’s testimony.
We disagree with Wife. First, we observe that Wife failed to comply with the
rule as well, by submitting her own witness list untimely. Furthermore, it does not appear
that Wife objected to Gentry’s testimony. These statements were made at the hearing:
MR. ROBINSON: Judge, if I could just make a – I would just like to bring
the Court’s attention – and, granted, I provided my
witness list late to Mr. Batson. So I’m just going to tell
you that on the front end. I have not been provided a list
of witnesses or exhibits or anything from Mr. Batson so
I have no idea who he’s calling. I haven’t had a chance
to contact these people. I just thought I would bring that
to the court’s attention.
MR. BATSON: I just told him the same day he told me about the two
teachers. John Gentry in a letter, and I told him in here
Monday.
THE COURT: Okay.
We find Wife’s counsel’s statements with regard to Gentry’s testimony too
ambiguous to be considered an objection. Indeed, the word ‘objection’ is not to be found in
the transcript at the relevant point. Even if we did treat Wife’s counsel’s statements as an
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objection to Gentry’s testimony, we note that trial judges have wide discretion in waiving
their local rules. We find no reversible error in the Trial Court’s allowing Gentry’s
testimony.
We next address whether the Trial Court erred in not giving Wife credit for
the contribution she made toward the purchase of the parties’ home with her pre-marital
assets. We first review the law pertaining to transmutation and property division in divorces.
As our Supreme Court has explained:
Tennessee is a “dual property” state because its domestic relations law
recognizes both “marital property” and “separate property.” See generally
Tenn. Code Ann. § 36-4-121; Eldridge v. Eldridge, 137 S.W.3d 1, 12 (Tenn.
Ct. App. 2002). When a married couple seeks a divorce, the “marital
property” must be divided equitably between them, without regard to fault on
the part of either party. Tenn. Code Ann. § 36-4-121(a)(1). “Separate
property” is not part of the marital estate and is therefore not subject to
division. See Cutsinger [v. Cutsinger], 917 S.W.2d [238, 241 (Tenn. Ct. App.
1995)]. Thus, it is imperative that the parties, the trial court, or both identify
all of the assets possessed by the divorcing parties as either marital or separate
so that a proper division can be accomplished.
Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009).
Our Supreme Court further explained in Snodgrass:
[S]eparate property may be deemed marital by operation of law under theories
of commingling or transmutation. Langschmidt v. Langschmidt, 81 S.W.3d
741, 747 (Tenn. 2002).
***
This Court addressed the related doctrines of commingling and
transmutation for the first time in Langschmidt and adopted the following
explanation:
[S]eparate property becomes marital property [by commingling]
if inextricably mingled with marital property or with the separate
property of the other spouse. If the separate property continues
to be segregated or can be traced into its product, commingling
does not occur . . . . [Transmutation] occurs when separate
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property is treated in such a way as to give evidence of an
intention that it become marital property . . . . The rationale
underlying these doctrines is that dealing with property in these
ways creates a rebuttable presumption of a gift to the marital
estate. This presumption is based also upon the provision in
many marital property statutes that property acquired during the
marriage is presumed to be marital. The presumption can be
rebutted by evidence of circumstances or communications
clearly indicating an intent that the property remain separate.
81 S.W.3d at 747 (quoting 2 Homer H. Clark, The Law of Domestic Relations
in the United States § 16.2 at 185 (2d ed. 1987)).
Snodgrass, 295 S.W.3d at 247, 256.
Regarding division of a marital estate, our Supreme Court has explained:
This Court gives great weight to the decisions of the trial court in
dividing marital assets and “we are disinclined to disturb the trial court’s
decision unless the distribution lacks proper evidentiary support or results in
some error of law or misapplication of statutory requirements and procedures.”
Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such,
when dealing with the trial court’s findings of fact, we review the record de
novo with a presumption of correctness, and we must honor those findings
unless there is evidence which preponderates to the contrary. Tenn R. App. P.
13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Because trial courts are in a far better position than this Court to observe the
demeanor of the witnesses, the weight, faith, and credit to be given witnesses’
testimony lies in the first instance with the trial court. Roberts v. Roberts, 827
S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequently, where issues of
credibility and weight of testimony are involved, this Court will accord
considerable deference to the trial court’s factual findings. In re M.L.P., 228
S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair
Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial court’s
conclusions of law, however, are accorded no presumption of correctness.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
***
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In a proceeding for divorce or legal separation, the trial court is authorized,
prior to determining the support and maintenance of one party by the other, to
“equitably divide, distribute or assign the marital property between the parties
without regard to marital fault in proportions as the court deems just.” Tenn.
Code Ann. § 36-4-121(a)(1) (2005). The trial court is empowered to do what
is reasonable under the circumstances and has broad discretion in the equitable
division of the marital estate. See Flannary v. Flannary, 121 S.W.3d 647, 650
(Tenn. 2003). The division of assets is not a mechanical process and trial
courts are afforded considerable discretion. Manis v. Manis, 49 S.W.3d 295,
306 (Tenn. Ct. App. 2001).
Keyt v. Keyt, 244 S.W.3d 321, 327-28 (Tenn. 2007) (footnote omitted).
Further, our Supreme Court has instructed:
[M]arital property must be divided equitably between the parties based on the
relevant factors enumerated in Tennessee Code Annotated section 36-4-121(c)
without regard to fault on the part of either party. Tenn. Code Ann. §
36-4-121(a)(1). Section 36-4-121(a)(1) requires an equitable division of
marital property, not an equal division. Robertson v. Robertson, 76 S.W.3d
337, 341 (Tenn. 2002).
Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010) (emphasis in original).
Tennessee Code Annotated § 36-4-121 (c) provides:
(c) In making equitable division of marital property, the court shall consider
all relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills,
employability, earning capacity, estate, financial liabilities and financial needs
of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the
education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital
assets and income;
(5) (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
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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;
(10) The amount of social security benefits available to each spouse;
and
(11) Such other factors as are necessary to consider the equities between
the parties.
Tenn. Code Ann. § 36-4-121 (c) (Supp. 2012).
Wife argues that she should have been given credit for $83,613.71 in pre-
marital assets she paid as a down payment on the parties’ marital home. In the Trial Court’s
oral ruling as part of its 2008 order, incorporated into the December 2011 final decree, the
Trial Court specifically found transmutation as to this money. On appeal, Wife essentially
argues that her earning power is less than Husband’s, and, therefore, the Trial Court should
have credited Wife with her pre-marital contribution.
We do not find Wife’s argument compelling. Wife’s pre-marital contribution
became part of the marital estate, the division of which was within the Trial Court’s sound
discretion. The evidence in the record on appeal does not preponderate against the Trial
Court’s finding of transmutation or its division of the marital property as being equitable.
Given that, we affirm the Trial Court as to this issue.
We next address whether the Trial Court erred in its computation of child
support. The child support history of this case is long and winding. In the 2008 order, the
Trial Court explained how Wife’s child support arrearage would be calculated:
[The Trial Court takes] the difference in the child support calculations of the
plaintiff ($1031.00) and defendant ($888.00) using the midpoint number to
determine child support arrearage from October 2007 to the present. The
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midpoint amount for child support is $960.00 per month and the defendant
Kimberly Ruth McDaniel owes $9,600.00 from October 24, 2007 thru July 28,
2008 and continuing at $960.00 a month until further Ordered of the Court.
However, the child support worksheet attached to this order states a final child
support order of $290, and thus is inconsistent with the figures mentioned by the Trial Court
in its order. Wife also asserts on appeal that the Trial Court was mistaken as she did not
submit either worksheet. In January 2009 before our remand of McDaniel, Wife filed a
petition for modification of child support, citing changed circumstances. In the Trial Court’s
supplemental final decree of December 2011:
[T]he Court finds the child support was set at $960.00 per month for the
Defendant, Kimberly McDaniel to pay beginning on October 24, 2007 and
until further Orders of the Court. Unpaid child support beginning October 24,
2007 and continuing through September 24, 2011 totals $46,080.00, the
Defendant is given credit for the four payments made to the State of Tennessee
in 2009 totaling $1,450.00 which leaves a total arrearage as of September 24,
2011 of $44,630.00. The Court further finds this amount is a judgment against
the Defendant, Kimberly McDaniel and is a set off against the award of any
equity that the Defendant is entitled to in the homeplace.
The following exchange on the subject of child support occurred in the judge’s
oral memorandum opinion, attached to the order:
THE COURT: I am going to reaffirm my previous findings, and the order may
reflect that with the following exceptions: Child support, I’m still not satisfied,
Mr. Batson, has been calculated correctly, because she has got three children
and a grandchild living with her for which she is providing support. That
needs to be taken into account in the child support calculations.
MR. BATSON: The only - - well, she is getting child - - the two children are
adults. Chris and Mark are adults. The other child was born out of wedlock,
and we don’t have to pay for that one. She gets child support for that one or
did, because it was used to buy drugs is what you heard. I don’t think she gets
credit for a grandchild.
***
THE COURT: I’m going to leave it at 960.
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MR. ROBINSON: I think that we’ve asked Your Honor to modify it. Actually
it was on a prior motion before the Court when she went on TTD because of
an on-the-job injury that Mr. Schwall filed. I think there is a motion before the
Court to modify it.
***
THE COURT: It stays at 960 . . . .
The record contains no additional child support worksheet for the December
2011 supplemental final decree. The two child support worksheets contained in the record
as exhibits, as well as a third child support worksheet attached to the Trial Court’s 2008
order, do not satisfy the worksheet requirement as these worksheets are inconsistent with the
child support ordered. Given the inconsistent worksheets in the record, we simply lack the
necessary information to properly review the Trial Court’s child support determination. See
Miller v. Miller, No. E2010-00225-COA-R3-CV, 2011 WL 1641888, *3 (Tenn. Ct. App.
April 29, 2011), no appl. perm. appeal filed. The child support worksheet must be included
in the record, and none of these worksheets in the record is consistent with the Trial Court’s
child support determination. As reluctant as we are to prolong this controversy, we vacate
the Trial Court’s judgment as to child support and remand to the Trial Court with respect to
this issue so that an accurate child support worksheet can be prepared, considered by the
Trial court, and entered into the record.
We next address whether the Trial Court erred in its award of attorney’s fees.
For attorney’s fees in a divorce case, courts consider factors that also pertain to alimony
awards. An award of alimony in solido for payment of attorney’s fees should be based on
the factors set forth in Tenn. Code Ann. § 36-5-121(i), and is appropriate when the spouse
seeking attorney’s fees does not have adequate funds to pay his or her legal expenses. Yount
v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002). Conversely, a spouse with sufficient
property or income to pay his or her attorney’s fees is not entitled to be compensated. Koja
v. Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000).
The Trial Court, in its 2009 memorandum and order, found that Wife had
prolonged this litigation. We find nothing in the record to call this finding by the Trial Court
into question. We believe the Trial Court acted within its sound discretion in denying Wife’s
request for attorney’s fees and awarding attorney’s fees to Husband in the amount awarded.
The Trial Court committed no reversible error in awarding attorney’s fees to Husband.
Finally, we address whether the Trial Court erred in assessing guardian ad litem
fees against Wife. “In awarding guardian ad litem fees in a custody case, the trial court is
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given wide discretion, and this court will not interfere in the exercise of that discretion absent
a clear showing of abuse.” Keisling v. Keisling, 196 S.W.3d 703, 726 (Tenn. Ct. App. 2005).
It appears from the record that the Trial Court considered the conduct of Wife’s father,
Homer Jerrods, in making Wife totally responsible for guardian ad litem fees. Mr. Jerrods,
not a party on appeal, allegedly had engaged in an outburst against the guardian ad litem after
court which resulted in a contempt charge. However, in the supplemental decree of divorce,
the Trial Court dismissed the contempt charge against Mr. Jerrods. With the Trial Court’s
reasoning on this issue relying so seemingly significantly on this dismissed charge of
contempt against Mr. Jerrods, we find it inappropriate for Wife to shoulder the entire
guardian ad litem fee. Rather, we modify the award of guardian ad litem fees such that it be
paid in equal amounts by Wife and Husband.
In summary, we find no reversible error with respect to the Trial Court’s
decisions to allow Gentry’s testimony; finding transmutation with respect to wife’s pre-
marital contributions to the marital home and the division of the marital property; and, the
award of attorney’s fees. We, however, modify the Trial Court’s order with respect to
guardian ad litem fees to make each party responsible for fifty percent of those fees. Finally,
we vacate and remand the judgment of the Trial Court as it pertains to child support due to
a lack of proper documentation in the record for the Trial Court’s determination as to child
support.
Conclusion
The judgment of the Trial Court is affirmed as modified, in part, and, vacated,
in part. We remand this cause to the Trial Court for further proceedings consistent with this
Opinion. The costs on appeal are assessed one-half against the Appellant, Kimberly Ruth
McDaniel, and her surety, if any; and, one-half against the Appellee, Harold Dean McDaniel.
_________________________________
D. MICHAEL SWINEY, JUDGE
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