Yelena Utkina Kesterson v. Thomas Michael Kesterson

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
AUGUST 24, 2005 Session

YELENA UTKINA KESTERSON v. THOMAS MICHAEL KESTERSON,
ET AL.

Direct Appeal from the Chancery Court for Carroll County
No. 03-DR-0063 Ron Harmon, Chancellor

No. W2004-02815-COA-R3-CV - Filed January 4, 2006

This case involves issues arising out of the parties’ divorce. The chancery court designated and
divided the parties’ assets and placed an equitable lien on the separate property of the husband. The
chancery court did not award alimony or attorney’s fees and discretionary costs to the wife. We
affirm in part, vacate in part, reverse in part, and remand for further proceedings. Further, we decline
to award attorney’s fees and costs on appeal.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
Vacated in Part, Reversed in Part, and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

W. Brown Hawley, II, Paris, TN, for Appellant

Larry J. Logan, McKenzie, TN, for Appellees

OPINION

I. FACTS & PROCEDURAL HISTORY

Helena Utkina Kesterson (“Wife” or “Appellant”) and Thomas Michael Kesterson
(“Husband,” and collectively with Wife, the “Parties”) married on February 4, 1999, in Tashkent,
Uzbekistan. At the time they married, Wife was 28 years old, and Husband was 49 years old. They
have no children of their marriage, but, after their marriage, Wife brought her nine year old daughter
to live with Husband in Carroll County, Tennessee at Husband’s pre-marital home. Husband also
has a daughter, Mrs. Stormi Prather (“Prather,” and collectively with Husband, the “Appellees”), by
a previous marriage.
 On May 6, 2003, Wife filed a complaint for divorce in the Chancery Court of Carroll County,
Tennessee. Husband left the United States and remained outside the country when Wife filed her
complaint for divorce. Husband did not return during the pendency of the proceedings below, but
he did employ counsel to represent him during the proceedings. At the time of her marriage to
Husband, Wife was a practicing physician in Uzbekistan. Upon coming to the United States, Wife
did not work outside the marriage. According to Wife, she was unable to work as a physician in the
United States because her foreign license was not recognized here, and she has been unable to pass
numerous tests required for her to obtain her license in the United States. During their marriage,
Husband paid for Wife to take a course to assist her in obtaining her license, however, Wife quit the
course before completion. Wife is currently enrolled in school working toward her Physician’s
Assistant degree at a cost of approximately $20,000.00 per year. At the time of the divorce hearing,
Wife lacked approximately twenty-one (21) months of course work to complete her degree.

At the time of the Parties’ marriage, Husband owned two businesses, Minton Enterprises, Inc.
(“Minton”) and Tomlin Industries (“Tomlin”) with his then ex-wife, Linda Kesterson, each holding
a fifty percent (50%) interest in the businesses. During the Parties’ marriage, Husband purchased
his ex-wife’s interest in Minton and Tomlin. Thereafter, Husband merged Tomlin and a newly
formed corporation, Tristar Manufacturing, Inc. (“Tristar”), into a new corporation, Three Star, Inc.
(“Three Star”). Further, Husband created a certificate of deposit valued at $70,000.00 in Prather’s
name (the “Prather Certificate of Deposit”). Husband also attempted to transfer numerous shares
of stock in Minton to Prather. In addition, Husband transferred an account held with Edward Jones
Investments (the “Edward Jones Account”) into Wife’s name, which Wife contends he then
liquidated without her consent. Wife contends that Husband dissipated their marital assets prior to
leaving the country.

On October 5, 2004, the chancery court issued its order granting a divorce to Wife based
upon inappropriate marital conduct by Husband. The chancery court awarded Wife $121,283.00,
less $5,000.00 credit for the value of the horses and all the home furnishings. The awarded amount
included one-half of the mortgage payments made by Husband during the marriage, one-half of the
appraised value of the “little house,” one-half of the money withdrawn from the Edward Jones
Account, one-half of the money refunded based upon a wire transfer, and one-half of the money
transferred by Prather through wire transfers to Husband. The court also ordered that Husband and
Prather to pay off the debt owed on Wife’s Chevrolet pickup truck and that Husband’s Chevrolet
Corvette, which was titled in Prather’s name, would stand as security to ensure Husband pays off the
debt owed on Wife’s truck. Finally, the chancery court found that the interests in Minton
Enterprises, Inc. (‘Minton”) and Three Star, Inc. (“Three Star”) were not marital property and granted
an equitable/judgment lien in favor of Wife on all assets owned by husband, which included all the
assets of Minton and Three Star, Inc. as well as his interest in the “little house.” The chancery court
also placed a judgment lien on the Chevrolet Corvette, which was still in Prather’s name.

On January 10, 2005, Husband filed a motion to release the judgment lien on Three Star due
to a pending sale. According to Husband, Three Star was heavily indebted and several individuals
were interested in purchasing Three Star by assuming the debt of Three Star. On January 28, 2005,

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the Parties entered into a consent order. In this order, Wife agreed to release the equitable/judgment
lien on Three Star in return for Husband’s half ownership of the “little house;” the transfer of the title
of the Chevrolet pickup truck from Husband to Wife’s name; the release of the lien against the
Chevrolet pickup truck held by the Bank of Gleason; the payment of $3,000.00 from the Bank of
Gleason to Wife; and the transfer of Husband’s ownership interest in the horses owned by the Parties
to Wife. Wife also agreed to subordinate her judgment lien in the Chevrolet Corvette to the Bank
of Gleason’s lien on it. The Parties agreed that the ownership interest in the “little house” would not
be considered as part of the marital estate for any purposes, including appeal of the chancery court’s
decision.

On May 16, 2005, the chancery court amended its order filed October 5, 2004 with an order
nunc pro tunc to deny Appellant’s request for alimony and attorney’s fees and discretionary costs
incurred at trial. The order also denied any requests by either party for relief that were not
specifically addressed in its original order or any subsequent judgment.

II. ISSUES PRESENTED

Appellant has timely filed a notice of appeal and presents the following issues for review:

1. Whether the chancery court erred in its designation and division of marital and separate
property;
2. Whether the chancery court erred by failing to grant Appellant alimony;
3. Whether the chancery court erred by failing to award Appellant her attorney’s fees and
discretionary costs; and
4. Whether Appellant is entitled to her attorney’s fees and discretionary costs on appeal.

Appellees have presented the following additional issue for review:

5. Whether the chancery court erred by imposing an equitable lien on the assets of Minton,
which is currently owned by Prather.

For the following reasons, we affirm in part, vacate in part, and reverse in part the decision of the
chancery court, and remand this case for further proceedings consistent with this opinion. Further,
we decline to award attorney’s fees and costs on appeal.

III. STANDARD OF REVIEW

“Appellate review of a division of marital property is de novo upon the record with a
presumption of the correctness of the trial court’s findings of fact.” Dellinger v. Dellinger, 958
S.W.2d 778, 780 (Tenn. Ct. App. 1997) (citing Tenn. R. App. P. 13(d); Hass v. Knighton, 676
S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993)).
“Trial courts have wide discretion in the manner in which marital property is divided, and their
decisions are accorded great weight on appeal.” Id. (citing Wade v. Wade, 897 S.W.2d 702, 715

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(Tenn. Ct. App. 1994); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)). “The trial
court’s decision on the distribution of marital property is presumed correct unless the evidence
preponderates otherwise.” Id. (citing Tenn. R. App. P. 13(d); Wallace, 733 S.W.2d at 107).

Further, “[t]rial courts have broad discretion concerning the amount and duration of spousal
support.” Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994) (citing Loyd v. Loyd, 860
S.W.2d 409, 412 (Tenn. Ct. App. 1993); Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App.
1989)). As such, “[a]ppellate courts should not interfere with the trial court’s decision except when
there is a clear showing that the trial court, in its discretion, reached the wrong conclusion with the
result that a manifest injustice will be done if the trial court’s decision is allowed to stand.” Butler
v. Butler, 680 S.W.2d 467, 470 (Tenn. Ct. App. 1984) (citing Crouch v. Crouch, 385 S.W.2d 288,
293-94 (Tenn. Ct. App. 1964); Raskind v. Raskind, 325 S.W.2d 617, 622-23 (Tenn. Ct. App. 1959);
24 Am.Jur.2d Divorce and Separation § 625 (1983)). This Court reviews any conclusions of law
by the trial court under a de novo standard with no presumption of correctness. Union Carbide Co.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

IV. DISCUSSION

A. Designation & Division of Marital & Separate Property

On appeal, Appellant asserts that the chancery court erred when it designated the Edward
Jones Account as marital property and the business interests of Husband, the Prather Certificate of
Deposit, and the unaccounted money removed by Husband from Three Star, Inc. as separate
property. We address each property in turn.

1. Edward Jones Account

First, Appellant contends that the Edward Jones Account was wrongly designated as marital
property and should have been designated the separate property of Appellant. Originally, the Edward
Jones Account was in Husband’s name. In order for the Edward Jones Account to be designated as
the separate property of Appellant, Husband must have made a gift inter vivos of the account to
Appellant.

As this Court has recently stated,

[t]wo elements must be present in order to find a properly executed
gift inter vivos. Arnoult v. Griffin, 490 S.W.2d 701, 710 (Tenn. Ct.
App. 1972) (citing Dodson v. Matthews, 117 S.W.2d 969 (Tenn.
1938)). First, the donor must have the present intent to make a gift
to the donee. Id. Intent is determined from the totality of the
circumstances. Id. Second, the donor must deliver the gift to the
donee. Id. For delivery to occur, the donor must “surrender complete
dominion and control of the gift” to the donee. Pamplin v.

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 Satterfield, 265 S.W.2d 886, 888 (Tenn. 1954). To prove delivery,
the donee must show “evidence free from personal interest and not
equivocal in character that the property claimed was delivered to
donee during the donor’s life . . . .” Atchley v. Rimmer, 255 S.W.
366, 369 (Tenn. 1923). “The testimony of the beneficiary of an inter
vivos gift is not sufficient to establish the gift.” Union Planters v.
Shepard, No. W2002-01188-COA-R3-CV, 2003 Tenn. App. LEXIS
498, at *12 (Tenn. Ct. App. July 14, 2003) (citing Atchley, 255 S.W.
at 369). Mere possession of the property at issue is not enough. Id.
The donee must prove both intent and delivery by clear and
convincing evidence. Parsley v. Harlan, 702 S.W.2d 166, 173
(Tenn. Ct. App. 1985) (citing Ingram v. Phillips, 684 S.W.2d 954
(Tenn. Ct. App. 1984)).

In re Estate of Greene, No. W2004-02910-COA-R3-CV, 2005 Tenn. App. LEXIS 698, at *7-8
(Tenn. Ct. App. Nov. 7, 2005).

In this case, Appellant has failed to demonstrate that Husband intended to make a gift of the
Edward Jones Account and delivered the gift to Appellant. At trial, the only evidence that Appellant
presented to show that a gift inter vivos had been made was her own testimony. This evidence alone
is insufficient to demonstrate that a gift inter vivos had been made. However, even assuming that
this evidence would be sufficient to support a gift, her testimony does not support the finding of a
gift. According to Appellant, after the Parties married, Husband placed the account in Appellant’s
name, informing Appellant that he wanted to keep the Edward Jones Account for both of their future
use in her name. This statement by Husband demonstrates that he did not intend to make a gift of
the Edward Jones Account. Rather, this statement demonstrates that Husband transmutated the
property from his separate property to become part of the marital estate.

“Under the doctrine of transmutation, separate property may become the property of the
marital estate if there is evidence that the parties intended for it to be marital property and treated it
as such.” Whitley v. Whitley, No. M2003-00045-COA-R3-CV, 2004 Tenn. App. LEXIS 373, at *17
(Tenn. Ct. App. 2004) (citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002)).
“Treating the property in such a way creates a rebuttable presumption of a gift to the marital estate,
which can be overcome by ‘“evidence of circumstances or communications clearly indicating an
intent that the property remain separate.”’” Id. (quoting 2 Homer H. Clark, The Law of Domestic
Relations in the United States § 16.2 at 185 (2d ed. 1987)).

Thus, we affirm the decision of the chancery court designating the Edward Jones Account
as marital property.

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 2. Husband’s Business Interests

Next, Appellant contends that the chancery court erred when it did not designate the
ownership interests in Minton and Three Star as marital property. Section 36-4-121(b)(2) defines
“Separate Property” as:

(A) All real and personal property owned by a spouse before
marriage, including, but not limited to, assets held in individual
retirement accounts (IRAs) as that term is defined in the Internal
Revenue Code of 1986, as amended;
(B) Property acquired in exchange for property acquired before the
marriage;
(C) Income from and appreciation of property owned by a spouse
before marriage except when characterized as marital property under
subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise
or descent;
(E) Pain and suffering awards, victim of crime compensation awards,
future medical expenses, and future lost wages; and
(F) Property acquired by a spouse after an order of legal separation
where the court has made a final disposition of property.

Tenn. Code Ann. § 36-4-121(b)(2)(A)-(F) (2005). Section 36-4-121(b)(1) defines marital property
as:

1) (A) “Marital property” means all real and personal property, both
tangible and intangible, acquired by either or both spouses during the
course of the marriage up to the date of the final divorce hearing and
owned by either or both spouses as of the date of filing of a complaint
for divorce, except in the case of fraudulent conveyance in
anticipation of filing, and including any property to which a right was
acquired up to the date of the final divorce hearing, and valued as of
a date as near as reasonably possible to the final divorce hearing date.
In the case of a complaint for legal separation, the court may make a
final disposition of the marital property either at the time of entering
an order of legal separation or at the time of entering a final divorce
decree, if any. If the marital property is divided as part of the order of
legal separation, any property acquired by a spouse thereafter is
deemed separate property of that spouse. All marital property shall be
valued as of a date as near as possible to the date of entry of the order
finally dividing the marital property.
(B) “Marital property” includes income from, and any increase in
value during the marriage of, property determined to be separate

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 property in accordance with subdivision (b)(2) if each party
substantially contributed to its preservation and appreciation, and the
value of vested and unvested pension, vested and unvested stock
option rights, retirement or other fringe benefit rights relating to
employment that accrued during the period of the marriage.
(C) “Marital property” includes recovery in personal injury,
workers' compensation, social security disability actions, and other
similar actions for the following: wages lost during the marriage,
reimbursement for medical bills incurred and paid with marital
property, and property damage to marital property.
(D) As used in this subsection (b), “substantial contribution” may
include, but not be limited to, 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.

Tenn. Code Ann. § 36-4-121(b)(1)(A)-(D) (2005).
Applying these definitions to the evidence adduced at trial, this Court finds that the chancery
court was in error when it found the ownership of the companies to be the separate property of
Husband. When the Parties married, Husband owned 50% of Minton and of Tomlin. After his
marriage to Appellant, Husband acquired the other 50% ownership of Minton and Tomlin from his
ex-wife, and started a new company, Tristar. Subsequently, Husband merged Tomlin and Tristar
into a new corporation, Three Star. Thus, Husband’s 50% ownership of Minton and Tomlin
acquired after marriage and the ownership of Tristar were part of the marital estate. See Tenn. Code
Ann. § 34-6-121(b)(1)(A). Accordingly, we reverse the chancery court’s decision to designate
ownership of Minton and Three Star as separate property of Husband and remand.

3. Prather Certificate of Deposit

Appellant also asserts that the chancery court erred when it denied her request to treat the
Prather Certificate of Deposit as marital property.1 We disagree.

“Whether the property is marital or separate property for the purposes of property division
is a question of fact.” Renick v. Renick, No. 01-A-01-9007-CV-00263, 1991 Tenn. App. LEXIS
489, at *8 (Tenn. Ct. App. June 12, 1991). Thus, we must affirm the chancery court’s decision
unless the evidence adduced at trial preponderates otherwise. See Tenn. R. App. P. 13(d).

1
Although the chancery court’s initial decision did not designate the Prather Certificate of Deposit as separate
property, the chancery court entered an order nunc pro tunc that held that “[t]he requests for either party for relief not
specifically address [sic] in the Court’s ruling or the subsequent Judgment were considered by the Court to be denied.”
Thus, Appellant’s request that the Prather Certificate of Deposit be treated as marital property was denied.

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 At trial, Appellant presented the testimony of Jerry Dale Smith, certified public accountant,
(“CPA”) to prove that the money used for the Prather Certificate of Deposit had to be from income
derived during the marriage. CPA testified that Husband had no appreciable savings or assets when
the Parties married other than the Edward Jones Account. Appellant concludes that because Husband
had no income or assets when they married, the money must have been from income made during
the marriage. However, Appellant admitted during trial that Husband kept money and jewelry in a
safety deposit box. Any money or jewelry kept in this box would not have been part of CPA’s
analysis of Husband’s assets and savings. Further, it was adduced at trial that Husband purchased
a Chevrolet Corvette and had it placed in Prather’s name. From the evidence, it appears that Husband
maintained certain assets in other people’s names. Thus, we cannot say that the chancery court erred
when it found that the Prather Certificate of Deposit was separate property. Accordingly, we affirm
the decision of the chancery court as to this issue.

4. Unaccounted Money Removed by Husband from Three Star, Inc.

Lastly, Appellant contends that the unaccounted money removed by Husband from Three
Star, Inc. should be considered part of the marital estate. As we have stated earlier, part of the
ownership of Three Star is marital property. Thus, our analysis hinges on whether Husband
dissipated these funds in anticipation of divorce. If Husband has done so, a portion of this money
will become part of the marital estate.2

As we have previously stated,

“The burden of persuasion and the initial burden of production in
showing dissipation is on the party making the allegation, and that
party retains throughout the burden of persuading the court that funds
have been dissipated, but after that party establishes a prima facie
case that moneys have been dissipated, the burden shifts to the party
who spent the money to produce evidence sufficient to show that the
expenditures were appropriate.”

Wiltse v. Wiltse, No. W2002-03132-COA-R3-CV, 2004 Tenn. App. LEXIS 546, at *19 (Tenn. Ct.
App. Aug. 24, 2004) (quoting 24 Am.Jur.2d Divorce and Separation § 560 (1998) (citations
omitted)).

The evidence at trial fails to support a finding that Husband dissipated the marital assets. At
trial, Appellant argued that Husband dissipated the funds of Three Star when he took out a $150,000
loan from the Bank of Gleason, a portion of which was paid directly to Husband allegedly to pay off
a note receivable. Other than the alleged re-payment of corporate debt, Appellant was unable to
show how Husband used these funds. In essence, Appellant’s argument is that, since she does not

2
W e discuss in part IV. A. 2. of this Opinion that part of the ownership of the two companies is marital
property.

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know how the money was spent, dissipation must have occurred. Appellant has failed to meet her
burden in this case. Thus, we cannot say that chancery court erred when it found no dissipation of
assets. Accordingly, we affirm the decision of the chancery court with regard to this issue.

B. Denial of Alimony

Appellant also contends that the chancery court erred when it declined to award alimony to
Appellant. We disagree. Section 36-5-121 of the Tennessee Code provides guidance for trial courts
when determining the amount of alimony a court should award a party:

(i) In determining whether the granting of an order for payment of
support and maintenance to a party is appropriate, and in determining
the nature, amount, length of term, and manner of payment, the court
shall consider all relevant factors, including:
(1) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit
sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and
the necessity of a party to secure further education and training to
improve such party's earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited
to, physical disability or incapacity due to a chronic debilitating
disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian
of a minor child of the marriage;
(7) The separate assets of each party, both real and personal,
tangible and intangible;
(8) The provisions made with regard to the marital property, as
defined in § 36-4-121;
(9) The standard of living of the parties established during the
marriage;
(10) The extent to which each party has made such tangible and
intangible contributions to the marriage as monetary and homemaker
contributions, and tangible and intangible contributions by a party to
the education, training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; and

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 (12) Such other factors, including the tax consequences to each
party, as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i)(1)-(12) (2005).3 “The two most important factors are the obligor’s
ability to pay and the obligee’s need.” Wiltse v. Wiltse, No. W2002-03132-COA-R3-CV, 2004
Tenn. App. LEXIS 546, at *19 (Tenn. Ct. App. Aug. 24, 2004) (citing Lancaster v. Lancaster, 671
S.W.2d 501, 503 (Tenn. Ct. App. 1984)). “The propriety of awarding alimony as well as the
adequacy of the amount of an alimony award depends upon the unique facts of each case.” Butler
v. Butler, 680 S.W.2d 467, 470 (Tenn. Ct. App. 1984).

Applying these standards to the evidence adduced at trial, we cannot say that the chancery
court abused its discretion when it did not award alimony to Appellant. Before Appellant moved to
the United States, she was a practicing physician in Uzbekistan. After withdrawing from courses
to become a licensed physician in the United States, Appellant enrolled in a university level program
to become a physician’s assistant and, at the time of trial, was less than two years away from
completion of the program. At the time Appellant filed for divorce, the Parties had been married
only 4 years. Appellant is 35 years old, of sound mind, and with no physical conditions which would
limit her ability to earn income. The Parties had no children of the marriage. Further, the chancery
court awarded Appellant a substantial amount of assets totaling over $115,000. Husband was at fault
for the divorce, but that fact alone does not necessitate an award of alimony. Accordingly, we affirm
the decision of the chancery court not to award alimony.

C. Equitable Lien

On appeal, Appellees assert that the chancery court erred when it placed an equitable lien on
all the assets of Minton and all the stock ownership of Minton. We agree.

Section 36-4-121(e)(2) of the Tennessee Code states “[t]he court may impose a lien upon the
marital real property assigned to a party as security for the payment of spouse support or payment
pursuant to property division.” Tenn. Code Ann. § 36-4-121(e)(2) (2005) (emphasis added).

“[C]ourts must attempt to give effect to the legislative purpose and intent of a statute, as
determined by the ordinary meaning of its text, rather than seek to alter or amend it.” Wausau Ins.
Co. v. Dorsett, 172 S.W.3d 538, 543 (Tenn. 2005) (quoting Wilkins v. Kellogg Co., 48 S.W.3d 148,
152 (Tenn. 2001)). “In attempting to accomplish this goal, courts must keep in mind that the
‘legislature is presumed to use each word in a statute deliberately, and that the use of each word
conveys some intent and has a specific meaning and purpose.’” Wilkins, 48 S.W.3d at 152 (quoting
Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2000)). “‘Consequently, where

3
These standards were previously codified in section 36-5-101 of the Tennessee Code, which became effective
on September 1, 1983. Because of this, we need not decide whether the standards can be applied retroactively to causes
of action that accrued prior to July 1, 2005.

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the legislature includes particular language in one section of the statute but omits it in another section
of the same act, it is presumed that the legislature acted purposefully in including or excluding that
particular subject.’” Id. (quoting Bryant, 33 S.W.3d at 765).

While section 36-4-121(e)(2) does not specifically state that a lien may be imposed on
separate property for the payment pursuant to property division, Tenn. Code Ann § 36-4-121(e)(2),
section 36-4-121(e)(1) of the Tennessee Code allows liens to be placed on the marital real property
and separate real property of a spouse as security for payment of child support, Tenn. Code Ann. §
36-4-121(e)(1). Had the legislature intended for a spouse’s separate property to serve as security for
payment pursuant to a property division, it would have stated so, especially given that separate real
property was specifically included as possible security for payment of child support. Thus, we hold
that courts may not use separate property of a spouse as security for payment pursuant to a property
division. Accordingly, the decision of the chancery court as to this issue is vacated.

D. Attorney’s Fees & Costs at Trial

Lastly, Appellant contends that the chancery court erred when it did not award her attorney’s
fees and discretionary costs incurred at trial. “The decision to award attorney’s fees to a party in a
divorce proceeding, and the amount thereof, are largely within the trial court’s discretion and will
not be disturbed upon appeal unless the evidence preponderates against such a decision.”
Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992) (citing Batson v. Batson,
769 S.W.2d 849, 862 (Tenn. Ct. App. 1988); Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn. Ct. App.
1988)). “Because an award of attorney’s fees is treated the same as an award of alimony, the trial
court should consider the factors of Tenn. Code Ann. [36-5-121(i)] to determine whether such an
award is appropriate.” Wiltse, 2004 Tenn. App. LEXIS 546, at *23-24 (citing Koja v. Koja, 42
S.W.3d 94, 98 (Tenn. Ct. App. 2000) (citing Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App.
1997); Duncan v. Duncan, 686 S.W.2d 568, 573 (Tenn. Ct. App. 1984))).

Earlier in this opinion, this Court applied the standards for determining whether to award
alimony to the evidence adduced at trial and found that the chancery court’s denial of alimony was
proper. Likewise, we cannot say that the chancery court abused its discretion when it did not award
attorney’s fees and discretionary costs to Appellant. Although Appellant argues that attorney’s fees
and discretionary costs should be awarded because her award of assets from the divorce did not
include any liquid assets, we find appellant was awarded a substantial amount of money in the
divorce decree. Accordingly, we affirm the decision of the chancery court not to award attorney’s
fees and discretionary costs incurred at trial.

E. Attorney’s Fees & Costs on Appeal

Appellant has requested that this Court award her attorney’s fees and discretionary costs that
she has incurred as a result of this appeal. In this appeal, both parties have been successful. “Where
both parties are partially successful on appeal, it has been held that no counsel fees should be
awarded in respect to the appeal.” Baggett v. Baggett, 512 S.W.2d 292, 294 (Tenn. Ct. App. 1973)

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(citing 27B C.J.S. Divorce § 325(2)c). Thus, we decline to award Appellant her attorney’s fees and
discretionary costs incurred on appeal.

V. CONCLUSION

For the reasons set forth herein, we affirm in part, vacate in part, and reverse in part the
chancery court’s decision. We remand for further proceedings consistent with this opinion. Further,
we decline to award attorney’s fees and costs on appeal. Costs of this appeal are taxed one-half to
Appellant, Yelena Utinka Kesterson and her surety, and one-half to Appellees, Thomas Michael
Kesterson and Stormi Prather, for which execution may issue if necessary.

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ALAN E. HIGHERS, JUDGE

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