Jason Richard Madden v. Jill Cara Madden

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 12, 2016 Session

JASON RICHARD MADDEN V. JILL CARA MADDEN

Appeal from the Chancery Court for Williamson County
No. 41096 Michael W. Binkley, Judge

No. M2015-01301-COA-R3-CV – Filed July 28, 2016

In this divorce action, Father appeals the trial court’s classification of the marital
residence as an asset and the division of the marital estate. He also challenges the
designation of Mother as the primary residential parent and the residential schedule. For
her issue, Mother contends she should be granted exclusive authority to make all major
decisions regarding the child due to the parents’ inability to agree upon such matters. We
affirm the trial court’s classification and division of the marital estate. We also affirm the
designation of Mother as the primary residential parent and the parenting plan with one
exception. The parenting plan directs major decisions concerning the child be made
jointly by Mother and Father. Because the evidence preponderates in favor of the finding
that the parents are unable to agree upon matters concerning the child’s education and
non-emergency healthcare, we remand with instructions to modify the parenting plan by
awarding Mother sole decision-making authority regarding such matters. See Tenn. Code
Ann. § 36-6-407(b) (“The court shall order sole decision-making to one (1) parent
when . . . [b]oth parents are opposed to mutual decision making;”).

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which
RICHARD H. DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Charles G. Blackard and Adrian H. Altshuler, Franklin, Tennessee, for the appellant,
Jason Richard Madden.

Deana C. Hood, Franklin, Tennessee, for the appellee, Jill Cara Madden.

OPINION

Jason Richard Madden (“Father”) and Jill Cara Madden (“Mother”) married on
April 23, 2006, and they have one minor child from the marriage, a daughter born in
December of 2007. The parties separated in May 2012, and on June 20, 2012, Father filed
a complaint for divorce citing the grounds of irreconcilable differences. Mother filed an
answer admitting to irreconcilable differences and asserted the statutory defense of
justifiable cause, see Tenn. Code Ann. § 36-4-120, and requested that the parties be
declared divorced pursuant to Tenn. Code Ann. § 36-4-129.

The case was tried on September 4 and 5, 2014. The testimony presented during
the two-day trial primarily focused on establishing a permanent parenting plan and the
classification and division of the marital estate, specifically the marital residence. Mother
and Father sought to be named primary residential parent of their child. Mother proposed
a parenting plan that granted her 240 days and Father 125 days of parenting time. Father
proposed a parenting plan that granted him 285 days and Mother 80 days.

Mother testified that she should be the primary residential parent because she has
been the child’s primary caregiver since her birth. Mother testified that she cared for all
of the child’s basic needs including bathing and feeding, and that she scheduled the
child’s medical appointments and play dates with other children. Father agreed that
Mother had been the child’s primary caregiver during the marriage; however, Father
testified that he should be the primary residential parent because Mother made “totally
unfounded” accusations that Father sexually molested the child. Mother insisted that her
accusations of abuse were made in good faith and testified at length as to incidents that
occurred during the parties’ marriage that gave her concerns that Father was sexually
abusing the child.1 She testified that she reported the abuse after the child made
statements that Father had touched her. Mother’s report was investigated by the
Department of Children’s Services, which determined the allegations to be unfounded.

As to the marital estate, the parties reached an agreement prior to trial as to the
division of the marital property with the exception of the marital residence, Father’s
pension, and the expenses of expert psychologist James Walker, PhD.2 The testimony at
trial, however, principally focused on whether the marital residence was unencumbered.

Mother and Father purchased the marital residence in 2009, paying cash for the
full purchase price of $290,000. It is undisputed that $240,000 of the cash payment was
transferred to Mother and Father from Richard Madden (“Rick Madden”), the father of
Father, to assist them in their purchase of the marital home. However, Mother and Father
dispute whether the $240,000 was a mortgage, loan, or gift.

1
Having reviewed the record, including the trial court’s findings as to this issue which we
address later, we do not believe it necessary to repeat the details of the alleged abuse in this opinion.
2
Following the initiation of the divorce action, Dr. James Walker was appointed for the purpose
of evaluating the parties psychologically. The issue of delegation of payment for fees and expenses of Dr.
Walker was reserved for the divorce hearing.

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 Mother consistently testified that she did not consider the $240,000 a loan to be
repaid. She testified that she did not execute any written agreement stating that she must
repay the $240,000 and that Rick Madden never told her that he expected her to repay the
money. According to Mother, the $240,000 was a gift to the parties from Rick Madden to
assist them in their purchase of the marital residence. Mother also testified that Father
explained to her that the money was an “early inheritance” from his father but that he
wanted to make monthly interest payments to his father to help Mother and Father
appreciate the value of the money they were given.3 She further testified that it was her
understanding that the parties were to make the monthly interest payments until Father’s
parents passed away, after which there would be no need to continue paying. In support
of her position that the marital residence was unencumbered marital property, Mother
offered the Warranty Deed to the property evidencing title in the names of Father and
Mother and testified that there was no deed of trust or encumbrance on the property.

Father sought to have the intra-family transaction classified as an enforceable
mortgage and asserted that it should be repaid from the proceeds from the sale of the
marital residence. In support of this position, Father testified that the parties made
monthly interest payments to his father. He also presented the parties’ joint tax returns
wherein Mother and Father took a mortgage interest deduction and the corresponding
joint tax returns of Rick Madden and his wife wherein they reported mortgage interest
payments.

Rick Madden, who is a certified public accountant and has an extensive work
history in the banking industry, testified that the transaction was a loan. He testified that
he was able to loan Mother and Father the money by taking out a $240,000 advance on
his home equity loan and that he holds a “private mortgage” on the marital residence.4 He
stated that he spoke with his son regarding the terms of the loan; however, Rick Madden
did not recall a conversation with Mother regarding whether the money was a loan and
whether or not he expected repayment. Rick Madden further testified that he did not
require the parties to sign a promissory note or execute a deed of trust and that there is no
amortization schedule.

The parties stipulated to the grounds for divorce and in its Final Decree of Divorce
entered on November 21, 2014, the trial court declared the parties divorced pursuant to

3
The parties’ practice of paying monthly interest payments to Rick Madden was not uncommon.
Prior to purchasing the marital residence, the parties lived in a townhome owed by Rick Madden. Mother
testified that Rick Madden was aware that the parties wanted to purchase a home in the future and wanted
to help prepare them for the costs incurred from owning a home. As a result, Father and Mother paid the
real estate taxes and mortgage interest on that property.

Immediately following Rick Madden’s testimony, the trial court said to him, “So this is a private
4

mortgage essentially,” to which he responded affirmatively.

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Tenn. Code Ann. § 36-4-129. Concerning the issue of whether Father sexually abused the
child and whether Mother made false accusations, the court concluded:

I don’t know what happened. But the proof appears to me by a
preponderance of the evidence that there was no child sexual abuse. I just
can’t say – be comfortable saying there was. One the other hand to reiterate,
I understand how [Mother] feels. I understand her subjective thoughts about
what she believes happened and I respect that.

With regard to the parenting plan, the court found that, although the majority of
the factors under Tenn. Code Ann. § 36-6-106 favored both parties equally, an equal
division of parenting time was not in the child’s best interest. The trial court found that
the child needed stability and continuity and, because Mother had been the primary
caretaker, this factor weighed in favor of Mother. The trial court designated Mother
primary residential parent and awarded her 232 days and Father 133 days of parenting
time. With respect to major decisions concerning the child, the trial court ordered the
parents to make such decisions jointly, stating: “I think both parents should be involved
in discussing with each other educational decisions, non-emergency health care, religious
upbringing and extracurricular activities. I have faith in both of you that you can do that
from this point forward. Bottom line is you will have to or some other judge will arrange
this if you can’t do it yourselves.”

Turning to the division of the marital estate, the trial court assessed the expenses
of psychologist Dr. Walker equally to the parties and awarded Father his accumulated
pension as his sole and separate property. The court found the marital residence to be
unencumbered marital property and ordered the sale of the residence with the proceeds to
be divided equally between the parties. In reaching its decision, the trial court made
thorough findings of fact and conclusions of law and provided alternative rulings. The
order reads in pertinent part:

[With] regard to the mortgage issue . . . [Father] is not the person to assert
his parents’ (specifically Mr. Rick Madden) interest in the parties’ marital
residence. The Court specifically finds that [it] does not have jurisdiction to
adjudicate Mr. Rick Madden’s interests and rights (i.e. financial interest in
the parties’ marital residence) as Mr. Rick Madden is not a party to these
proceedings.

Secondly, the Court finds that the interest in the marital residence is a pure
legal issue; and incident thereto is the fact that the marital residence is
marital property to be equitably divided and ownership thereof is evidenced
by a Warranty Deed. The Warranty Deed is clearly titled exclusively in the
names of Jason Madden [“Husband”] and Jill Madden [“Wife”], the parties.
It is the Wife’s contention that the $240,000.00 to acquire the marital

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residence was a gift (also referred to as an early inheritance) from
Husband’s parents (specifically Rick Madden). It is Husband’s position that
the funds received [from] Rick Madden to acquire/purchase the marital
residence were a loan; and such is evidenced by the interest payments from
the parties to Husband’s parent (i.e. Rick Madden). These interest payments
are only memorialized by entries upon the parties’ joint tax returns and the
joint tax return of Rick Madden with his wife. . . . [T]he Court finds
interesting that no actual mortgage and/or loan was placed and/or recorded
against the marital residence. The Court acknowledges that the parties filed
taxes claiming a mortgage interest deduction and Husband’s parents filed
tax returns claiming mortgage interest income. Also, particularly noted by
the Court is that Mr. Rick Madden was particularly financially
sophisticated (i.e. achieving the status as a [CPA] and having worked in the
banking industry). What troubles the Court is that there is no specific
requirement to repay principal, no promissory note, no requirement to
execute a Deed of Trust, and no fixed time to pay as the parties were to
apparently pay in perpetuity.

Thirdly, given all these factors, the Court then looked to the application of
the Statute of Frauds pursuant to [Tenn. Code Ann. §] 29-2-101 and thusly,
finds the Statute of Frauds to be applicable to this transaction. The Court
references the case of Mifsud vs. Dominion Bank [of Middle Tn., No.
01A01-9305-CH-00233, 1993 WL 477012 (Tenn. Ct. App. Nov. 17,
1993)]; as much as that case can be applied, and the Court certainly does
not find that case directly on point but helpful. The Court of Appeals
interprets case law to support a premise that related documents to a sale of
real estate fall under the Statute of Frauds and must be in writing.
Following the logic in Mifsud, Husband’s promise to repay his parents is a
promise to make another-that is his mother or father, the owner of a lien or
charge upon the land, i.e. a mortgage that was not filed. Thusly, as the
result of actions of the parties and Mr. Rick Madden, it is the finding of the
Court that if such actions were intended to create a mortgage, then the
transaction would squarely fall subject within the Statute of Frauds, and
even though there may be evidence of interest payments as recorded upon
individual tax returns, such does not suffice to establish a written
instrument constituting a mortgage or loan and fails to be enforceable by
this Court.

[A]s an alternative finding, the Court considered whether the application of
contract law and substantial performance supports Husband’s position of
establishing a loan. The Court looks to the applicability of Farley v. Ellis,
[No. W2000-00354-COA-R3-CV, 2000 WL 1876431 (Tenn. Ct. App. Dec.
27, 2000)] . . . wherein the Courts have continuously denied enforcement of

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 oral contracts of the sale of land wherein part performance of an oral
contract for sale of land will not take the agreement out of the Statute of
Frauds. Further, Tennessee courts have held that partial performance is
applicable only in cases of personality, not realty. The facts of this case do
not take the agreement out of the Statute of Frauds, despite evidence of tax
returns.

Fourthly, as an alternative finding is the applicability of equitable estoppel
whether such was asserted or not, the Court finds that Husband clearly fails
to meet his burden of proof by clear and convincing evidence, and
therefore, the application of equitable estoppel is precluded.

Fifthly, as an alternative finding, the Court considers application of an
implied contract to establish the mortgage transaction. The Court finds the
facts do not support a consumer loan and as such a mortgage is not to be
implied in fact nor implied in law.

Sixthly, the Court considered whether the mortgage transaction could be
established by unjust enrichment, quasi contract, and/or quantum meruit.
The facts of this case do not support such a remedy, and further, because
proof to establish such must be clear and convincing which this Court finds
to be absent; such application cannot be made.

This appeal followed. Although stated differently, Father contends the trial court
erred by designating Mother as the primary residential parent. Specifically, he asserts that
the record “clearly shows Mother made false allegations of sexual abuse,” and
“otherwise, the parties were both equally capable of parenting the parties’ minor child
. . . .” As to the intra-family transaction, Father contends that the evidence supports a
finding that this transaction was a loan and therefore the marital residence should be
classified as a martial debt rather than an asset. Alternatively, he argues that if the
$240,000 is determined to be a gift, then the gift should be classified as his separate
property because it was a gift to him from Rick Madden, and not a gift to Mother. Father
also challenges the trial court’s division of the marital estate.

For her part, Mother contends the trial court erred by ordering the parties to make
all major decisions regarding the child jointly. Mother asserts that she should be the sole
decision maker regarding all major issues pursuant to Tenn. Code Ann. § 36-6-407(b),
which provides that the court “shall order sole decision-making” to one parent when
“[b]oth parents are opposed to mutual decision making” or when one parent is “opposed
to mutual decision making, and such opposition is reasonable in light of the parties’
inability to satisfy the criteria for mutual decision-making authority.” Mother also seeks
to recover her attorney’s fees on appeal.

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 ANALYSIS

I. PARENTING PLAN

Father contends the trial court erred by designating Mother as the primary
residential parent. He also contends the trial court erred by failing to award equal
parenting time to each parent. For her part, Mother contends the trial court erred by not
granting her exclusive authority to make all major decisions regarding the child.

This court reviews decisions in divorce cases de novo with a presumption that the
trial court’s findings of fact are correct unless the evidence preponderates otherwise.
Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Nichols v. Nichols, 792 S.W.2d
713, 716 (Tenn. 1990). Moreover, appellate courts are reluctant to second-guess a trial
court’s determination regarding parenting schedules. See Adelsperger v. Adelsperger, 970
S .W.2d 482, 485 (Tenn. Ct. App. 1997). “Trial courts have broad discretion in devising
permanent parenting plans and designating the primary residential parent. In reaching
such decisions the courts should consider the unique circumstances of each case.” Burton
v. Burton, No. E2007-02904-COA-R3-CV, 2009 WL 302301, at *2 (Tenn. Ct. App. Feb.
9, 2009) (citing Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999); see also Nelson v.
Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001).

Trial courts have broad discretion to fashion parenting plans that best suit the
unique circumstances of each case. See Parker, 986 S.W.2d at 563. Furthermore, it is not
the role of the appellate courts to “tweak [parenting plans] ... in the hopes of achieving a
more reasonable result than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88
(Tenn. 2001). Decisions regarding parenting schedules often hinge on subtle factors, such
as the parents’ demeanor and credibility during the proceedings. Adelsperger, 970
S.W.2d at 485. Thus, a trial court’s decision regarding a permanent parenting plan will be
set aside only when it “falls outside the spectrum of rulings that might reasonably result
from an application of the correct legal standards to the evidence found in the record.”
Eldridge, 42 S.W.3d at 88.

A. Primary Residential Parent

Before addressing the substance of Father’s argument, we must address his failure
to comply with the rules governing appeals to this court.

Tennessee Rule of Appellate Procedure 27(a)(7) states that the brief of the
appellant shall contain an argument setting forth “the contentions of the appellant with
respect to the issues presented . . . including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record
(which may be quoted verbatim) relied on . . . .” (Emphasis added). The Rules of the

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Court of Appeals set forth the format and content of the written argument in regard to
each issue on appeal. Rule 6(a) states that the argument for each issue shall contain:

1. A statement by the appellant of the alleged erroneous action of the trial
court which raises the issue . . . with citation to the record where the
erroneous or corrective action is recorded.
2. A statement showing how such alleged error was reasonably called to the
attention of the trial judge with citation to that part of the record where
appellant’s challenge of the alleged error is recorded.
3. A statement reciting wherein appellant was prejudiced by such alleged
error, with citations to the record showing where the resultant prejudice is
recorded.
4. A statement of each determinative fact relied upon with citation to the
record where evidence of each such fact may be found.

Tenn. Ct. App. R. 6(a). Rule 6(b) of the Rules of the Court of Appeals then provides that

No complaint for reliance upon action by the trial court will be considered
on appeal unless the argument thereon contains a specific reference to the
page or pages of the record where such action is recorded. No assertion of
fact will be considered on appeal unless the argument upon such assertion
contains a reference to the page or pages of the record where evidence of
such fact is recorded.

The entirety of Father’s argument that the trial court erred in awarding Mother
primary residential parent reads as follows:

[T]he record clearly shows Mother made false allegations of sexual abuse
of the parties’ minor child by Father; and such should not result in the Trial
Court awarding to Mother “Primary Residential Parent”, especially when
the parties are fully capable of shared/equal custody and parenting time and
have proven their respective abilities to do so for an extended 2½ year
period of time. Awarding primary custody to Mother is not in the best
interest of the parties’ minor child given the particular circumstances of this
case. The Court should remand to set parenting time to be equal, and
consistent with T.C.A. 36-6-106 “allowing maximum time to each party”.

As the above clearly reveals, Father failed to cite any authority that supports his
argument that the trial court erred in designating Mother as the primary residential parent;
thus, he failed to comply with Tenn. R. App. P. 27(a)(7). Further, instead of including
facts with citations to the record in support of his position, Father merely offers
conclusions such as “the record clearly shows . . .” and “awarding primary custody to
Mother is not in the best interests of the parties’ minor child given the particular

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circumstances of this case.” Based on his failure to comply with these rules, Father has
waived this issue on appeal.5 However, even if Father had preserved this issue, we find
no merit in the substance of his arguments.

In this case, the trial court first addressed the issue of whether Father sexually
abused the child or whether Mother made false allegations. The trial court found that the
evidence did not support a finding that Father sexually abused the child. However, the
trial court also concluded that Mother’s allegations were made in good faith,
emphasizing: “On the other hand to reiterate, I understand how the mother feels. I
understand her subjective thoughts about what she believes happened and I respect that.”

In its detailed analysis, the trial court stated that it arrived at the permanent
parenting plan based on an analysis of the relevant statutory factors set forth in Tenn.
Code Ann. § 36-6-106, and we are able to correlate the trial court’s findings with the
associated factors. Although the trial court found that the majority of the factors favored
both parties equally, the court found that an equal division of parenting time was not in
the child’s best interest. In conducting the best interest analysis, the trial court noted that
stability and continuity in the child’s life was “the most important thing.” The evidence in
the record preponderates in favor of the trial court’s finding that stability and security is
paramount to the child’s best interest and Mother has offered that stability as the primary
care giver, attending to her basic daily needs, healthcare, and education. Moreover,
Father did not dispute that Mother was the primary caregiver.

A decision regarding a child’s best interest should place the child in an
environment that will best serve the child’s physical and emotional needs. Barnes v.
Barnes, No. W2002-00428-COA-R3-CV, 2002 WL 31387268, at *3 (Tenn. Ct. App.
Oct. 23, 2002) (citing Parker v. Parker, 986 S.W.2d 557, 562 (Tenn. 1999)). We are
specifically instructed not to “tweak” a visitation order in the hope of achieving a more
reasonable result than the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.
2001). We would be remiss not to state that Father appears well-intentioned and
obviously loves the child, but the evidence does not preponderate against the trial court’s
finding that the factors in Tenn. Code Ann. § 36-6-106 weigh in Mother’s favor.

Because the evidence does not preponderate against the trial court’s findings, we
affirm the designation of Mother as the primary residential parent.

5
“Courts have routinely held that the failure to make appropriate references to the record and to
cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a
waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000); see also Newcomb v. Kohler
Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006) (holding that the failure to cite to any legal authority or
to fashion an argument constitutes waiver of an issue); Messer Griesheim Indus., Inc. v. Cryotech of
Kingsport, Inc., 131 S.W.3d 457, 474 (Tenn. Ct. App. 2003) (“Failure to cite authority for propositions in
arguments submitted on appeal constitutes waiver of the issue.”).

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 B. Joint or Sole Decision-Making

In the permanent parenting plan, the trial court directed Mother and Father to
make decisions jointly insofar as they concern the child’s education, non-emergency
healthcare, religious upbringing, and extracurricular activities. Specifically, the trial court
stated: “[B]oth parents should be involved . . . . I have faith in both of you that you can do
that from this point forward. Bottom line is you will have to or some other judge will
arrange this if you can’t do it yourselves.” Undoubtedly, the child’s best interests will be
served if the parents can harmoniously make joint decisions regarding their child. In this
case, however, Mother and Father mutually opposed joint decision making regarding the
child’s education and non-emergency healthcare and there is ample evidence of the
parties’ difficulty communicating and reaching a consensus with regard to these
decisions.6

Mother testified that Father frequently did not send the child to preschool and that
he did not review the child’s school documents. She further testified that they have a
history of controversy and argument over the child’s medical history, diagnosis, and
prognosis. She stated that Father refuses to acknowledge that the child has asthma and a
food allergy to cashews even though the child had been diagnosed with both. 7 Mother
also testified as to an occasion when Father took the child to a walk-in clinic, without
informing Mother of the visit or that the child was prescribed medication.

For his part, Father testified that the parties have had “a ton of parental issues”
since Mother made allegations that Father sexually abused the child. He further testified
that Mother does not provide him with information regarding the child including medical
and school records. Father acknowledged the child’s asthma diagnosis but testified that

6
Mother proposed joint decision making regarding the child’s religious upbringing and
extracurricular activities. Although Father opposed joint decision making as to these issues, Father did not
appeal the trial court’s allocation of decision-making authority.
7
Mother presented the child’s medical record dated July 19, 2011, showing a positive result for a
food allergy to cashews and a diagnosis of “chronic cough, possible reactive airway component.” The
medical record further indicated the “Plan” for treatment as follows:

1. Strict avoidance of all tree nuts and peanuts given Positive SPT [skin prick test] to
cashew. Given negative SPT, may reintroduce watermelon OK to nave peanut butter if
desired.
2. EpiPen Jr. provided for PRN anaphylaxis use. EpiPen teaching provided.
3. Food allergy action plan completed and copy provided to family.
4. Rx Albuterol inhaler wits spacer teaching/asthma education for PRN.
Discussed that nighttime cough and exercise symptoms may be possible reactive
airway disease/asthma, especially given improvement with beta agonist. Will
re-assess cough at next visit and consider ICS at that time.
5. Follow-up in clinic in 3 months.

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he does not believe the child has asthma because he has never witnessed the child with
asthma related symptoms.

“[W]here the parents are unable to agree on matters of great importance to the
welfare of their minor children, the primary decision-making authority must be placed in
one parent or the other.” Webb v. Webb, No. M2012-02438-COA-R3CV, 2013 WL
6706855, at *2 (Tenn. Ct. App. Dec. 17, 2013) (quoting Coley v. Coley, No. M2007-
00655-COA-R3-CV, 2008 WL 5206297, at *7 (Tenn. Ct. App. Dec. 12, 2008)). Further,
Tennessee Code Annotated § 36-6-407(b) states that the “court shall order sole decision-
making to one (1) parent when it finds that: . . . Both parents are opposed to mutual
decision making; or . . . One (1) parent is opposed to mutual decision making, and such
opposition is reasonable in light of the parties’ inability to satisfy the criteria for mutual
decision-making authority.”

In consideration of the entire record in this case, we conclude that joint decision-
making on matters involving the child’s non-emergency healthcare and education is not
in the child’s best interest. Further, Mother is the most suitable person to exercise this
important function. Although Mother argues on appeal that she should also be awarded
sole-decision making authority for the child’s religious upbringing and extracurricular
activities because Father opposed joint-decision making, Mother did not make this
argument in the trial court. To the contrary, Mother testified that it was in the child’s best
interest that these decisions be made jointly.

For the foregoing reasons, we remand with instructions for the trial court to
modify the permanent parenting plan to change the decision making authority from
“joint” to “Mother” for the decisions pertaining to the child’s education and non-
emergency healthcare.

II. THE $240,000 QUESTION

Father contends that the trial court erred by finding the $240,000 intra-family
transaction to be unenforceable as a mortgage or loan and, thus, a gift. Although stated
differently, he insists that the evidence supports a finding that the transaction was a loan
and, as such, the martial residence should be classified as a marital debt.

“The determination of whether an intra-family transaction is a loan or a gift is a
question of fact.” Hayes v. Hayes, No. W2010-02015-COA-R3CV, 2012 WL 4936282, at
*7 (Tenn. Ct. App. Oct. 18, 2012) (citing Woods v. Woods, No. M2002-01736-COA-R3-
CV, 2005 WL 1651787, at *7 (Tenn. Ct. App. July 12, 2005)). In concluding that the
intra-family transaction was unenforceable as a mortgage or loan, the trial court stated
that it considered all information presented including the testimony of witnesses at the
trial, and all exhibits including the Warranty Deed, the parties’ joint tax returns, and the
joint tax returns of Rick Madden and his wife. The trial court also set forth its specific

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findings of fact and conclusions of law on this issue. The ones that are relevant to this
issue read as follows:

[Mother] offered the warranty deed and the property clearly is titled in
[Father] and [Mother’s] name. [Mother] says . . . the $240,000 for the
purchase price was given to her and [Father] from [Father’s] parents. . . .
She also testified that it was explained to her by [Father] that the money
was essentially an early inheritance. And in order to have both of them
understand and appreciate the value of money, and essentially what they
were given, he wanted them to make interest payments back to the parents,
wanted them to both make interest payments back to the parents.

[M]r. Rick Madden did not recall whether he had a conversation with
[Mother] about whether the money was a loan and whether or not there was
expected repayment of that loan. Mr. Rick Madden, as I understand it from
his testimony, spoke with his son regarding the terms of the loan. Mr. Rick
Madden claimed that it was a loan, and he holds a mortgage on that
property as evidenced by his tax returns where he reported the mortgage
interest and [Mother and Father] took a mortgage interest reduction on their
tax returns.

Also, there was testimony from Mr. Rick Madden’s other sons that he
essentially provided them with the same financial benefit, which is very
generous, no doubt about it. In addition to that they also testified about the
same arrangement, that there was no actual mortgage placed against the
home, but there was a deal where the interest deductions were taken on the
individual tax returns just as the parties had done in the present divorce
case.

All parties testified as I recall that it was their understanding they would
continue to pay the interest in perpetuity or until the loan was repaid. . . . I
asked that question because there was no amortization schedule. There was
no Deed of Trust, and there was no lien filed.

I kept looking for incidences of the oral testimony that this was a mortgage.
What are the actual incidences in the law that would support that oral
statement that it was a mortgage. I kept asking, where is your amortization
schedule? Where is your note? Where is the lien?

[I]t is interesting that what I got was the tax returns showing interest
deduction, that is interesting. That is some evidence that the oral statement
that was made that was in controversy had some teeth in it. Some evidence.
The thing that I recall too is that Mr. Rick Madden testified regarding his

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 extensive financial education and his work history in the banking industry.
Very impressive. Not only had he been head of a bank and had a CPA
degree, he also had extensive knowledge based on his past as he testified to
not only basic finance but also advanced finance, he had a full
understanding of it, there is no question about it.

And my question to myself, why in the world, if you intended this to be a
mortgage, did you not place a mortgage on the home? Why did you not
with your extensive knowledge and understanding, set it up just like any
other business arrangement if that is what you meant, with an amortization
schedule with the expectation that what you stated was in fact what you
meant. Again, evidence, documentary evidence of what you said supporting
exactly what you said. That was not done.

And then I had the testimony from [Father], who said, well, yes, we are
supposed to pay that back. And [Mother], says no, this was supposed to be
a gift. [T]hen Mr. Rick Madden says, you know, I wanted to give that to
them because I done that for my sons, but I wanted them to understand
financial responsibility, so I wanted them to pay back some of the money. I
understand.

[A]ll parties testified there was no requirement for the payment of principal,
and there was no time frame by which to make a payment towards the
principal, i.e., amortization schedule. Again, Mr. Rick Madden testified
regarding his extensive financial education and his work experience. It is
undisputed that [Mr.] Rick Madden did not require [Mother] or [Father] to
sign a promissory note. There is no evidence of that. It is also undisputed
that Mr. Rick Madden did not require [Mother] or [Father] to execute a
Deed of Trust. . . . In addition to that, there was no fixed time period at all
for the loan to repay, it was just in perpetuity.

In this case, Mother and Father gave differing accounts of whether the transaction
was intended to be a loan or a gift, yet the documentary evidence and lack of promissory
note fully support Mother’s testimony. Moreover, although Father insists that there was
sufficient proof before the court to support a finding that the transaction was a loan,
Father failed to provide any citations to the record as to where this “proof” exists. In
support of his position, Father merely states that the “testimony alone is proof of this
fact.” He does not dispute the fact that there is no promissory note or deed of trust
evidencing the loan. Instead, he insists that the interest payments memorialized by entries
on the parties’ joint tax returns and the joint tax return of Rick Madden and his wife is
“corroborating evidence” to support the conclusion that the transaction was a loan.

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 Father alternatively contends that “if the transaction [is] a gift, then the gift was
made to [Father] only and not to [Mother],” and should be classified as his separate
property. This issue is being raised for the first time on appeal. “[I]ssues raised for the
first time on appeal are waived.” See Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996).
We conclude that Father has waived this issue by failing to properly raise the issue in the
trial court.

Because Father has failed to cite to evidence that preponderates against the court’s
finding that the intra-family transaction is unenforceable as a mortgage or loan and, thus,
a gift, we affirm the trial court’s determination that the marital residence is
unencumbered marital property.

III. EQUITABLE DIVISION OF MARITAL PROPERTY

Father contends that the trial court erred by awarding Mother half of the interest in
the marital home. The entirety of his argument on this issue in his brief reads:

It would be [Father’s] submission that the portion provided by [Mr. Rick
Madden] (i.e. $240,000) be awarded to [Father] as being property tendered
to [Father] by his father (and/or a debt to his father); and thereafter, any and
all proceeds in excess be divided one-half (1/2) to each party. Truly the
award of $120,000.00 to Wife would be an unjust “windfall” not worthy of
any contemplation of “equitable” division in nature and clearly an abuse of
the Court’s discretion in its charge of making an “equitable distribution”.

This argument fails to satisfy Tennessee Rules of Appellate 27(a)(7) and
Tennessee Court of Appeals Rule 6(a). Additionally, Father failed to comply with Rule 7
of the Tennessee Rules of the Appellate Court requiring that in all cases in which a party
takes issue with the classification and division of marital property, the party must include
in its brief a chart specifying the property values proposed by both parties, the value
assigned by the trial court, and the party to whom the trial court awarded the property.
Tenn. Ct. App. R. 7.

“[P]arties cannot expect this court to do its work for them.” Bean v. Bean, 40
S.W.3d 52, 56 (Tenn. Ct. App. 2000) (citing England v. Burns Stone Company, Inc., 874
S.W.2d 32, 35 (Tenn. Ct. App. 1993)). Moreover, “[t]his Court is under no duty to verify
unsupported allegations in a party’s brief or for that matter consider issues raised but not
argued in the brief.” Id. (citations omitted). Due to the deficiencies in Father’s brief on
this issue, we find the issue waived.

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 IV. ATTORNEY’S FEES ON APPEAL

Mother seeks to recover her attorney’s fees and expenses on appeal. Whether to
award attorney’s fees on appeal is within this court’s sole discretion. Wilson v. Wilson,
No. M2008-02073-COA-R3-CV, 2009 WL 1037943, at *4 (Tenn. Ct. App. April 17,
2009) (citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). In
considering a request for attorney’s fees, we examine “the ability of the requesting party
to pay the accrued fees, the requesting party’s success in the appeal . . . and any other
equitable factor that need be considered.” Dulin v. Dulin, No. W2001-02969-COA-R3-
CV, 2003 WL 22071454, at *10 (Tenn. Ct. App. Sept. 3, 2003) (citing Folk v. Folk, 357
S.W.2d 828, 829 (Tenn. 1962)). After considering these factors, we decline to award
Mother her attorney’s fees on appeal.

IN CONCLUSION

The judgment of the trial court is affirmed as modified and this matter is remanded
to the trial court for further proceedings consistent with this decision. Costs of appeal are
assessed against Jason Richard Madden.

______________________________
FRANK G. CLEMENT, JR., JUDGE

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