05/22/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 24, 2017 Session
LYNNE E. HARRISON v. EDWIN B. HARRISON, JR.
Appeal from the General Sessions Court for Loudon County
No. 13-DV-200 Rex A. Dale, Judge
No. E2016-00672-COA-R3-CV
This divorce case involves a marriage of eight years’ duration. Because the parties had
reached an agreement with regard to the division of certain marital assets, the trial court
was requested during a bench trial to divide the parties’ retirement and pension accounts,
or the marital portion thereof, and other limited marital assets and liabilities. The trial
court considered the relevant statutory factors and apportioned the remaining assets and
liabilities 60% to the wife and 40% to the husband. The trial court also awarded the
husband $1,000.00 in attorney’s fees and $180.42 in court reporter fees. The husband has
appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
Edwin B. Harrison, Jr., Lenoir City, Tennessee, Pro Se.
William Lee Gribble, II, Maryville, Tennessee, for the appellee, Lynne E. Harrison.
OPINION
I. Factual and Procedural Background
This appeal results from a divorce action filed in the Loudon County General
Sessions Court (“trial court”). On July 29, 2013, the plaintiff, Lynne E. Harrison
(“Wife”), filed a complaint for divorce against the defendant, Edwin B. Harrison, Jr.
(“Husband”). Both parties were sixty years of age at the time of trial. Prior to trial, the
parties entered into an agreed order, which stated that Wife would pay Husband
$63,000.00 for his share of the parties’ equity in the marital residence, with Husband
quitclaiming any interest in the home to Wife. The parties further agreed that Husband
would remove all of his personalty and his truck from the home. Husband was also
allowed to retain his BMW automobile free from any claim by Wife while Wife was
allowed to retain her Hyundai automobile free from any claim by Husband as part of the
agreement.
The trial court conducted a bench trial on December 4 and 8, 2014, and June 22,
2015. The issues remaining for adjudication by the trial court were: (1) equitable
distribution of the parties’ retirement and pension accounts, or the marital portion thereof;
(2) equitable allocation of a liability to the Internal Revenue Service; (3) Husband’s claim
for a portion of a homeowner’s insurance premium refund received by Wife; (4) Wife’s
claim for a portion of prepaid car insurance premiums credited to Husband; (5) Wife’s
claim for reimbursement of expenses related to the marital residence for August 2013; (6)
Wife’s claim for reimbursement of medical and dental premiums and prescription costs
she paid for Husband; and (7) Husband’s claim for reimbursement of Discover credit
card purchases. Following the trial, the court entered a “Final Order” on March 2, 2016.
In its Final Order, the trial court discussed and analyzed the statutory factors
relative to an equitable distribution of marital property pursuant to Tennessee Code
Annotated § 36-4-121. During this eight-year marriage, no children were born. The
parties are of the same age. The court determined that both parties appeared to be in
good physical and mental health, although Husband claimed to have a heart problem, for
which he provided no medical proof. The court found that neither party would be
restricted from employment for health reasons.
It is undisputed that Wife had worked for Oak Ridge National Laboratory
(“ORNL”) for thirty-three years until her retirement in 2012. Wife earned a gross salary
at this employment of $50,000.00 to $60,000.00 per year, with a net salary of
approximately $3,500.00 per month. The court noted that Wife’s wages totaled
approximately $360,471.00 during the marriage. Wife testified that the majority of her
earnings were spent in payment of the parties’ household expenses. Wife also reported
that Husband assumed responsibility for all financial dealings during the parties’
marriage.
The trial court found that Husband was “not employed, but claims he had two
online collections businesses” at the time of the marriage. Husband indicated that
although he had monetary judgments in his favor, they were largely uncollectible. The
court further found that Husband also claimed his businesses owed him amounts through
promissory notes, such that he received approximately $300,000.00 in repayment of those
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obligations instead of a salary during the marriage, resulting in favorable tax
consequences for the parties. The court noted, however, that Husband presented no
documentation to support this claim. Although Husband also claimed to have received a
lump-sum pension payment of $40,514.00 during the marriage, which he purportedly
invested for the parties’ benefit, he provided no documentation of what happened to these
funds.
The trial court also found that Husband claimed to be in the business of recruiting
as well as selling life insurance and annuities at the time of trial. The trial court took into
account Husband’s experience in financial and technological employment. Although
Husband described his ownership of various trusts at the time of the marriage, he testified
they had been largely depleted by the time of trial. Husband also claimed separate assets,
consisting of a Honda Goldwing motorcycle valued at $13,500.00 and an interest in a
condo in Destin, Florida, valued at $14,500.00.
Regarding future employment prospects, the trial court found that both parties
possessed vocational abilities rendering them employable. According to the court, the
parties’ small estate would most likely be dissipated if the parties ceased working. The
court noted that while Wife was capable of paying her monthly expenses from her current
pension income, Husband claimed a monthly shortfall of $3,400.00.
The trial court determined Wife to be a credible witness while finding Husband’s
credibility to be “highly suspect.” In support, the court specifically found that Husband
presented “two false exhibits” in an effort to provide proof of monies that he purportedly
contributed to the marital estate. As the court observed, Husband later admitted that the
Quicken program he used to generate these documents was unreliable, and he was unable
to provide supporting documentary evidence of his claims. The court further stated in its
final judgment:
The court finds that Husband continually made large unsubstantiated claims
totaling multi-million dollar figures that benefitted the marriage. However
the court finds that Husband’s financial contributions to the marriage were
more in the line of business and stock trade losses coupled with
depreciation of assets and tax credit deductions on the 1040 Federal income
tax returns that were filed jointly for the parties for the years 2006 through
2010. At the time of the hearing, Husband had not filed 1040 Federal
income tax returns for 2011, 2012, and 2013, forcing wife to file separately
for each of those years, resulting in very little, if any financial benefit to the
marriage by the Husband.
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The trial court found that Wife’s “tangible contribution of a steady, continued
income stream during the marriage was sufficient to meet monthly household expenses
for the most part.” The court further found that the parties lived “somewhat lavishly” for
a time, taking multiple vacations that were paid for or deducted as an expense for tax
purposes by Husband. As the court noted, Wife “admitted that Husband was able to pay
what her income did not pay.” Based on Wife’s steady income throughout the marriage,
however, the trial court determined that Wife’s financial contribution to the marriage was
“much more significant than that of the Husband.”
Moreover, the trial court determined that each party maintained the ability to
continue to accumulate future assets and income if he or she chose to do so. The court
also found that the parties jointly decided to increase Wife’s contributions to her 401(k)
during the marriage; however, the growth of the marital estate was marginal due to
Husband’s reported stock losses of nearly $160,000.00.
Considering all of the factors enumerated in Tennessee Code Annotated § 36-4-
121, the trial court concluded that the marital assets and liabilities should be divided 60%
to Wife and 40% to Husband. In furtherance of this distribution, the court determined
that Wife’s Roth IRA, valued at $13,518.00, was Wife’s separate property because it was
funded with premarital contributions. To the extent that this asset increased in value
during the marriage, the court determined that Husband did not substantially contribute to
such increase, finding instead that any increase was attributable solely to market
fluctuation.
Wife’s traditional IRA, containing the funds rolled over from her 401(k) when she
retired, was valued at $82,335.00 and divided 40% to Husband and 60% to Wife. The
court specifically noted that “[t]he parties stipulated that $82,335.00 represents both the
funds she invested and growth that occurred during the marriage as a marital asset subject
to equitable division.” The court also directed that a Qualified Domestic Relations Order
(“QDRO”) be prepared by the parties, dividing the marital portion of Wife’s employer-
provided pension 60% to her and 40% to Husband.
With respect to the liability owed to the Internal Revenue Service (“IRS”), the trial
court found that Husband failed to file tax returns on behalf of the parties for the years
2011 through 2013 in a timely fashion. Having received notification of this failure, Wife
filed her own separate returns for those tax years on May 14, 2014. Consequently, Wife
incurred a tax liability for the respective years. The court noted that Husband “proffered
no proof as to his income for 2011, 2012, and 2013, nor what the difference would be had
they filed jointly for these years . . . .” The court therefore concluded that Husband’s
failure to timely file the tax returns resulted in Wife’s being forced to file separately “to
avoid penalties, interest, a threatened ‘forced filing,’ and other consequences from the
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IRS.” Because the tax liability represented by the filing of Wife’s returns was
determined to be a marital debt, the court ordered Husband to pay 40% of that liability, or
$4,616.00. Husband was also ordered to pay 40% of the tax preparation fee, or $230.00.
Regarding the parties’ claims for various reimbursements, the trial court denied
Husband’s claim seeking a portion of the refund of a homeowner’s insurance premium
received by Wife. The court also denied Wife’s claim seeking a portion of a prepaid
credit for an automobile insurance premium received by Husband. The court further
denied Wife’s claim for expenses related to the marital residence that she paid in August
2013. The court did, however, order Husband to reimburse Wife for the cost of medical
and dental insurance premiums Wife paid on Husband’s behalf through December 2015
in the amount of $5,661.00. The parties were ordered to calculate the amount of such
reimbursement due to Wife for 2016, through thirty days from the date of entry of the
Final Order, and submit it as an amendment to the order. Husband was further directed to
reimburse Wife $90.00 for prescription charges he placed on Wife’s credit card.
With reference to Husband’s claim that Wife owed certain amounts for expenses
she charged on a joint Discover credit card, Wife was ordered to reimburse Husband for
her personal expenses plus one-half of the parties’ joint expenses, for a total of $1,106.00.
The court attached to its order a master asset list detailing the equitable division of the
parties’ assets and debts. Husband was awarded attorney’s fees in the amount of
$1,000.00, due to Wife’s counsel’s late appearance and/or failure to appear at depositions
and hearings. The court also awarded Husband “associated court reporter fees for those
delays,” directing the parties to calculate those amounts and submit an amended order.
On March 22, 2016, the trial court entered an “Amendment to Final Order,” in
which the court directed that Wife be reimbursed the additional sum of $583.96 by
Husband for his medical and dental insurance premiums paid by Wife in 2016. Finally,
Wife was restored to her maiden name of Lynne Walker. Following the entry of this
order, Husband filed a notice of appeal.
Upon receipt of the record by this Court, it was discovered that the question of the
amount of court reporter fees owed to Husband had never been adjudicated by the trial
court. This Court therefore entered an order on March 14, 2017, directing the parties to
secure an order from the trial court resolving the issue of the amount of court reporter
fees no later than noon on March 23, 2017. On March 21, 2017, the trial court entered an
order setting the amount of court reporter fees at $180.42. The trial court clerk
transmitted a supplemental record to this Court containing such order. Upon submission
of a final judgment, this Court treated Husband’s premature appeal as timely pursuant to
Tennessee Rule of Appellate Procedure 4(d).
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II. Issues Presented
Husband presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by failing to state the effective date for
calculation of Husband’s portion of Wife’s pension.
2. Whether the trial court erred in its classification of Wife’s Roth IRA
as separate property or, in the alternative, whether the trial court’s
valuation of Wife’s traditional IRA was incorrect.
3. Whether the trial court erred by assessing to Husband a portion of
the income tax liability incurred by Wife for the years 2011-2013.
4. Whether the trial court erred in its valuation of certain items of
marital personalty.
5. Whether Husband is entitled to damages by reason of the failure of
Wife’s counsel to provide Husband with the required notice
regarding COBRA insurance benefits.
6. Whether Husband is entitled to damages by reason of the failure of
Wife’s counsel to prepare and submit a QDRO.
7. Whether the trial court’s award of attorney’s fees to Husband was
inadequate.
III. Standard of Review
In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of appellate review as
follows:
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
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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).
Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Questions relating to the classification
of assets as marital or separate are questions of fact. Bilyeu v. Bilyeu, 196 S.W.3d 131,
135 (Tenn. Ct. App. 2005).
Further, as this Court has previously held:
Because Tennessee is a “dual property” state, a trial court must identify all
of the assets possessed by the divorcing parties as either separate property
or marital property before equitably dividing the marital estate. Separate
property is not subject to division. In contrast, Tenn. Code Ann. § 36-4-
121(c) outlines the relevant factors that a court must consider when
equitably dividing the marital property without regard to fault on the part of
either party. An equitable division of marital property is not necessarily an
equal division, and § 36-4-121(a)(1) only requires an equitable division.
McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140, at *3-4 (Tenn.
Ct. App. Apr. 16, 2010) (internal citations omitted) (emphasis in original). See also
Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts
reviewing a distribution of marital property “ordinarily defer to the trial judge’s decision
unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not
supported by a preponderance of the evidence.”).
Additionally, as this Court has explained with regard to pro se litigants:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. The courts should take into account that
many pro se litigants have no legal training and little familiarity with the
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judicial system. However, the courts must also be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant’s
adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe.
The courts give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less
stringent than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the
litigation to the courts or to their adversaries. They are, however, entitled
to at least the same liberality of construction of their pleadings that Tenn.
R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the
courts cannot create claims or defenses for pro se litigants where none exist,
they should give effect to the substance, rather than the form or
terminology, of a pro se litigant’s papers.
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations
omitted).
IV. Deficiencies in Husband’s Brief
As a threshold matter, Wife points out that Husband has raised numerous issues
regarding the valuation and distribution of marital assets in his appellate brief while
failing to include a chart demonstrating the trial court’s valuation and distribution of
assets as required by Tennessee Rules of the Appellate Court 7. As this Court has
explained concerning this rule:
As a preliminary matter, we note that Tennessee Rules of the
Appellate Court Rule 7 requires that, in all cases where a party takes issue
with the classification and division of marital property, the party must
include in its brief a chart displaying 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. Rule 7 also requires that
“[e]ach entry in the table must include a citation to the record where each
party’s evidence regarding the classification or valuation of the property or
debt can be found . . . .” In the recent case of Harden v. Harden, No.
M2009-01302-COA-R3-CV, 2010 WL 2612688 (Tenn. Ct. App. June 30,
2010), this Court discussed the Rule 7 Table:
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This Court has previously held where an appellant fails to
comply with this rule, that appellant waives all such issues
relating to the rule’s requirements. This Court is under no
duty to search a trial court record in order to discern the
valuation of the couple’s property. This Court has previously
found issues involving the valuation and division of property
waived for failure to comply with Rule 7.
Id. at *8 (citations omitted). In explaining the necessity of the Rule 7
Table, we further stated:
[I]t is essential that the parties comply with Rule 7 in order to
aid this Court in reviewing the trial court’s decision. The
table required by Rule 7, allows this Court to easily and
correctly determine the valuation and distribution of the
marital estate as ordered by the trial court. Further, the Rule
7 table, allows this Court to ascertain the contentions of each
party as to the correct valuations and proper distribution, as
well as the evidence in the record which the party believes
supports its contention. Consequently, a table, in full
compliance with Rule 7, is vital as this Court must consider
the entire distribution of property in order to determine
whether the trial court erred. Moreover, this Court is under
no duty to minutely search the record for evidence that the
trial court’s valuations may be incorrect or that the
distribution may be improper.
Id.
Forbess v. Forbess, 370 S.W.3d 347, 354-55 (Tenn. Ct. App. 2011).
On March 24, 2017, Husband filed a motion with this Court seeking to supplement
his appellate brief with, inter alia, a tabulation of property. Although Husband’s table
does not strictly comply with Tennessee Rules of the Appellate Court 7, as previously
stated, this Court must be cognizant of both “fairness to a pro se litigant and unfairness to
the pro se litigant’s adversary.” Young, 130 S.W.3d at 62. Determining that no
unfairness would result from our acceptance of Husband’s property table, we hereby
grant his motion to supplement, finding his table to be in substantial compliance with
Tennessee Rules of the Appellate Court 7. As such, we determine no waiver with regard
to Husband’s issues involving the valuation and division of property.
9
Wife further argues that Husband’s brief fails to comply with the requirements of
Tennessee Rule of Appellate Procedure 27. Rule 27 states in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(4) A statement of the issues presented for review;
***
(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the
issues presented, and the reasons therefor, 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; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the
discussion of the issue or under a separate heading
placed before the discussion of the issues) . . . .
We recognize that Husband is a pro se litigant and respect his decision to proceed self-
represented. Although Husband’s brief fails to fully satisfy the requirements of
Tennessee Rule of Appellate Procedure 27, we determine that this is an appropriate case
in which to exercise our discretion to partially waive the briefing requirements in order to
adjudicate the issues presented in Husband’s principal brief. See Tenn. R. App. P. 2;
Chiozza v. Chiozza, 315 S.W.3d 482, 487-489 (Tenn. Ct. App. 2009) (“[T]here are times
when this Court, in the discretion afforded it under Tenn. R. App. P. 2, may waive the
briefing requirements to adjudicate the issues on their merits.”).
V. Division of Wife’s Pension
Husband has presented an issue concerning whether the trial court erred by failing
to state the effective date for calculation of the pension payments due to Husband from
Wife’s pension. In the argument section of his brief, however, Husband solely posits that
he should have received an equal share of the marital portion of Wife’s pension. During
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oral argument, Husband clarified that he believed he was entitled to share in the pension
benefits Wife received while the divorce action was pending.
The trial court ordered that the marital portion of Wife’s pension be divided 60%
to Wife and 40% to Husband, utilizing a formula set forth in correspondence to Wife
from ORNL’s office of pension operations. This correspondence, submitted as trial
exhibit five, detailed that the marital portion of Wife’s pension would be determined by
“multiplying the Participant’s current pension benefit by a fraction, the numerator of
which is the Participant’s participation in the Plan during the marriage (from 8/7/2005
through her retirement date of 6/1/2012), and the denominator of which is the
Participant’s total participation in the Plan as of her retirement date.” The
correspondence further explained that to calculate the marital portion of Wife’s monthly
pension benefit, such benefit would be multiplied by 6.75/32.8333, with 6.75
representing the time period from the date of the parties’ marriage to the date of Wife’s
retirement and 32.8333 representing Wife’s total years of employment. The resultant
marital portion would then be reduced according to the trial court’s equitable division,
which in this case would result in 40% of the marital portion awarded to Husband.
In rendering its equitable division of marital property, the trial court specifically
considered the pertinent statutory factors listed in Tennessee Code Annotated § 36-4-121
(Supp. 2016), which addresses the equitable division of marital property pursuant to
divorce, providing in pertinent part:
(a)(1) In all actions for divorce or legal separation, the court having
jurisdiction thereof may, upon request of either party, and prior to any
determination as to whether it is appropriate to order the support and
maintenance of one (1) party by the other, equitably divide, distribute or
assign the marital property between the parties without regard to marital
fault in proportions as the court deems just.
***
(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;
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(3) The tangible or intangible contribution by one (1) party to the
education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets
and income;
(5)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for
equitable distributions and which are made for a purpose contrary to the
marriage either before or after a complaint for divorce or legal separation
has been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9) The tax consequences to each party, costs associated with the
reasonably foreseeable sale of the asset, and other reasonably foreseeable
expenses associated with the asset;
(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.
In the case at bar, the trial court noted that this was a marriage of approximately
eight years’ duration. The court also found that the parties were both sixty years of age
and in good physical and mental health. Both parties were skilled and employable, which
would render them both capable of acquiring or accumulating assets and income in the
future. Husband received as his separate property a motorcycle valued at $13,500.00 and
an interest in a condo in Destin valued at $14,500.00. Each party had a modest amount of
separate retirement savings.
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The trial court’s analysis of the statutory factors found in Tennessee Code
Annotated § 36-4-121 focused primarily on factor number five, concerning the
“contribution of each party to the acquisition, preservation, appreciation, depreciation or
dissipation of the marital or separate property.” The court made extensive findings
regarding this factor, detailing the parties’ contributions of employment income and other
assets. The court found that Wife worked for ORNL for approximately thirty-three years
before her retirement in 2012, earning an annual gross salary of $50,000.00 to
$60,000.00. According to the court, Wife’s wages from 2006 through 2012 totaled
$360,471.00.
With reference to Husband’s contributions, the trial court stated that Husband
“claimed his corporation owed him some $300,000.00 which he used to pay down
promissory notes owed to him instead of receiving a salary” but “provided no
documentation to support his claim.” Additionally, Husband received a lump sum of
$40,514.00 from his pension and retirement plan in 2012, which he claimed to have used
for investments to benefit the parties. The court found that Husband was unable to
provide documentation demonstrating where this money was deposited or for what
purpose it was used.
Husband provided documentation of two trust accounts that existed at the time of
the marriage, one with a balance of $45,598.00 at the time of the marriage and the other
with a balance of $955.00 in 2008. The court made an overarching finding that
Husband’s credibility was “highly suspect,” explaining that Husband presented
documents to the court in an effort to claim contributions in excess of $1,000,000.00 to
the marital estate. Husband later admitted that these documents were untrustworthy
because the “Quicken internal program he used to create them was unreliable.” The court
determined that Husband’s financial contributions to the marriage were “more in the line
of business and stock trade losses coupled with depreciation of assets and tax credit
deductions on the 1040 Federal income tax returns.”1 The court accordingly concluded
that Wife’s financial contribution to the marital estate was more significant than
Husband’s contribution.
Based on its findings with regard to the pertinent statutory factors, the trial court
determined that an equitable distribution of the marital estate would be effected through
1
The trial court made a specific finding that Husband reported stock losses of $160,000.00 on the parties’
federal income tax returns. Husband contends that this particular finding is unsupported by the record.
Although we agree with Husband that the parties’ tax returns do not demonstrate stock losses of this
magnitude, we do not find this single fact significant or determinative with regard to the trial court’s
overall analysis.
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an allocation of 60% of the marital property to Wife and 40% to Husband. We agree. As
this Court has explained with regard to an equitable marital property distribution:
The approach to dividing a marital estate should not be mechanical,
but rather should entail carefully weighing the relevant factors in Tenn.
Code Ann. § 36-4-121(c) in light of the evidence that the parties have
presented. Flannary v. Flannary, 121 S.W.3d [647,] 650-51 [(Tenn.
2003)]; Tate v. Tate, 138 S.W.3d 872, 875 (Tenn. Ct. App. 2003); Kinard v.
Kinard, 986 S.W.2d [220,] 230 [(Tenn. Ct. App. 1998)]. Trial courts have
broad discretion in fashioning an equitable division of marital property,
Jolly v. Jolly, 130 S.W.3d 783, 785 (Tenn. 2004); Fisher v. Fisher, 648
S.W.2d 244, 246 (Tenn. 1983), and appellate courts must accord great
weight to a trial court’s division of marital property. Wilson v. Moore, 929
S.W.2d 367, 372 (Tenn. Ct. App. 1996); Batson v. Batson, 769 S.W.2d 849,
859 [(Tenn. Ct. App. 1988)]. Accordingly, it is not our role to tweak the
manner in which a trial court has divided the marital property. Morton v.
Morton, 182 S.W.3d [821,] 834 [(Tenn. Ct. App. 2005)]. Rather, our role is
to determine whether the trial court applied the correct legal standards,
whether the manner in which the trial court weighed the factors in Tenn.
Code Ann. § 36-4-121(c) is consistent with logic and reason, and whether
the trial court’s division of the marital property is equitable. Jolly v. Jolly,
130 S.W.3d [783,] 785-86 [(Tenn. 2004)]; Gratton v. Gratton, No. M2004-
01964-COA-R3-CV, 2006 WL 794883, at *7 (Tenn. Ct. App. Mar. 28,
2006) (No Tenn. R. App. P. 11 application filed); Kinard v. Kinard, 986
S.W.2d at 231.
Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007), perm. app. denied (Tenn.
Sept. 17, 2007). The evidence in this matter preponderates in favor of the trial court’s
determination with regard to its equitable distribution of marital assets.
Specifically with regard to Wife’s pension, we find Husband’s contention that he
should receive 50% rather than 40% of the marital portion of this asset to be unavailing.
As previously explained, this Court must “accord great weight to a trial court’s division
of marital property” and should refrain from “tweak[ing] the manner in which a trial
court has divided the marital property.” See Owens, 241 S.W.3d at 490.
Husband also posits that he should have been awarded a share of the pension
payments Wife received during the pendency of the divorce proceedings. We note that
Tennessee Code Annotated § 36-4-121 defines marital property as “all real and personal
property, both tangible and intangible, acquired by either or both spouses during the
course of the marriage up to the date of the final divorce hearing,” further providing that
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such 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.” Accordingly, Wife’s pension benefits paid
during the pendency of the divorce proceedings were included in the total marital estate,
having been used either to contribute to or preserve marital assets or to extinguish marital
liabilities. In other words, Wife’s monthly pension benefits, which she has treated as
income and utilized for living expenses, have already been accounted for as part of the
overall distribution of marital property. See, e.g., Wilson v. Moore, 929 S.W.2d 367, 374
(Tenn. Ct. App. 1996) (determining that the husband’s income earned during the
marriage was marital property). We likewise find Husband’s contention regarding
pension payments unavailing.
VI. Classification of Wife’s Roth IRA
Husband also asserts that the trial court’s classification of Wife’s Roth IRA as her
separate property was improper. Husband contends that Wife’s Roth IRA was
established and funded during the marriage, such that it should have been considered
marital property. By contrast, Wife testified that her Roth IRA was funded entirely with
premarital monies. The trial court credited Wife’s testimony, determining that the “origin
of the money used to create [the] Roth IRA was from [Wife’s] separate pre-marital
earnings . . . .” The court further found that any increases in the value of Wife’s Roth
IRA were attributable solely to market factors rather than any contributions to its
preservation or appreciation by Husband. See Smith v. Smith, 93 S.W.3d 871, 878 (Tenn.
Ct. App. 2002).2
Inasmuch as neither party presented documentary evidence regarding the origin of
the money in Wife’s Roth IRA, determination of this issue hinges solely on witness
credibility. As our Supreme Court has explained:
[A]ppellate courts should afford trial courts considerable deference when
reviewing issues that hinge on the witnesses’ credibility because trial courts
are “uniquely positioned to observe the demeanor and conduct of
witnesses.” State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
“[A]ppellate courts will not re-evaluate a trial judge’s assessment of
witness credibility absent clear and convincing evidence to the contrary.”
Wells v. Tennessee Bd. Of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); see
2
Although not applicable to the instant action, we note that the current version of Tennessee Code
Annotated § 36-4-121(b)(1)(b)(iii), effective July 1, 2015, provides that any “account balance, accrued
benefit, or other value of vested and unvested pension benefits, vested and unvested stock option rights,
retirement, and other fringe benefits accrued as a result of employment prior to the marriage, together
with the appreciation of the value, shall be ‘separate property.’”
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also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d
352, 360 (Tenn. 2011).
Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014). We therefore conclude that the trial
court’s decision to credit Wife’s testimony regarding the origin of the funds in her Roth
IRA is entitled to such deference. We affirm the trial court’s classification of this asset as
Wife’s separate property.
Husband also posits that even if Wife’s Roth IRA is determined to be her separate
property, its value nonetheless should have been subtracted from the pre-marital value of
Wife’s 401(k) in order to properly determine the value of the marital portion of Wife’s
traditional IRA. Wife claimed that the pre-marital value of her 401(k) included the funds
later placed in the Roth IRA as well as the funds placed into Wife’s traditional IRA.
With regard to the marital portion of Wife’s traditional IRA, however, the trial court
stated: “The parties stipulated that $82,335.00 represents both the funds she invested and
growth that occurred during the marriage as a marital asset subject to equitable division.”
We presume that this stipulation was contained within a “Master Asset List” referenced
by the trial court in its order. Although the trial court did attach a “Master Asset List” to
its order, demonstrating its valuation and distribution of the parties’ assets and liabilities,
the order separately referenced a “Master Asset List” submitted by the parties, which is
not in the record.
Our Supreme Court has previously explained that a stipulation of fact by the
parties must be given effect by the court “if the factual stipulation is not patently untrue
in view of other evidence in the record.” See Mast Advert. & Pub., Inc. v. Moyers, 865
S.W.2d 900, 902 (Tenn. 1993). Furthermore, if a stipulation is not preserved in the
appellate record, a “conclusive presumption rises . . . that the stipulated facts were
sufficient to warrant [the trial court’s] action.” See Hall v. Hall, 241 S.W.2d 919, 921
(Tenn. 1951); see also McClendon v. McClendon, No. C.A. 760, 1987 WL 10677, at *2
(Tenn. Ct. App. May 13, 1987) (explaining that when the appellate record is incomplete,
this Court must presume that the evidence introduced supported the determination of the
trial court); Reid v. Reid, 388 S.W.3d 292, 295 (Tenn. Ct. App. 2012) (stating that it is the
parties’ duty to ensure that the record on appeal contains a “fair, accurate, and complete
account of what transpired” with regard to the issues presented on appeal). In this matter,
the trial court relied upon a stipulation by the parties with regard to the value of the
marital portion of Wife’s traditional IRA; therefore, we presume that a valid stipulation
existed in the absence of evidence to the contrary. As such, we determine that Husband’s
contention that such valuation was incorrect is unavailing.
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VII. Federal Income Tax Liability
Husband contends that the trial court erred by determining that Wife’s federal
income tax liability incurred for tax years 2011-2013 was a marital liability. Husband
argues that this liability was solely the result of Wife’s refusal to sign a joint tax return,
based on her decision to file separately regarding her income taxes. The trial court found
that Husband failed to timely file the parties’ returns for tax years 2011-2013, forcing
Wife to file separately to “avoid penalties, interest, a threatened ‘forced filing,’ and other
consequences from the IRS.” The court therefore determined this tax obligation to be a
marital debt. Upon our thorough review of the evidence, we agree.
It is undisputed that the federal income tax liability at issue was incurred by Wife
during the marriage. As such, there is no question that this obligation constituted a
marital debt. See Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003) (“‘[M]arital debts’
are all debts incurred by either or both spouses during the course of the marriage up to the
date of the final divorce hearing.”). Factors the trial court should consider when
equitably dividing marital debt include: (1) the debt’s purpose, (2) which party incurred
the debt, (3) which party benefitted from incurring the debt, and (4) which party is best
able to repay the debt. Id. at 814.
Wife testified that Husband had voluntarily undertaken the responsibility for filing
the parties’ income tax returns during the marriage. Wife explained that after the parties’
separation, she learned through correspondence from the IRS that Husband had filed the
parties’ 2010 income tax return three years late and had failed to file income tax returns
for tax years 2011-2013. Husband did not dispute Wife’s testimony in this regard. Wife
stated that she hired a tax preparer to prepare and file income tax returns on her behalf for
those years, which were filed as “married filing separately.” In so doing, Wife incurred
income tax liability plus tax preparation fees.
According to Wife, when she initially learned about the delinquent income tax
returns, she pleaded with Husband to file them, to no avail. Wife related that Husband
refused to prepare or file the income tax returns, stating that he did not have time. Wife
also testified that she did not trust Husband to file the returns after she learned that he had
not been truthful with her about other matters. Therefore, Wife retained a third-party
professional to prepare the returns on her behalf. Husband testified that although he
offered numerous times during the pendency of the divorce to prepare and file the
delinquent income tax returns, Wife would not cooperate or communicate with him.
Husband also claimed that he offered to file amended returns after Wife had separately
filed in order to avoid the tax liability. Husband admitted, however, that he never
prepared any amended returns for Wife’s signature, stating that he did not have the
necessary information. Husband related that he also separately filed income tax returns
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for 2011 and 2012, but as of the December 8, 2014 trial date, Husband had not yet filed
his 2013 income tax return because there was “no rush.”
Based on the proof presented, it is clear that this federal tax liability was incurred
to prevent the parties from being assessed penalties by the IRS for failing to file certain
income tax returns. Although the tax liability was technically incurred by Wife, both
parties received an associated benefit and were similarly situated to repay this debt;
therefore, the evidence does not preponderate against the trial court’s decision to allocate
the debt 60% to Wife and 40% to Husband.
Husband’s argument with regard to this liability also implies that Wife dissipated
the marital estate by filing separate income tax returns. In a similar case, however, this
Court determined that a spouse’s decision to file her income tax returns separately during
the marriage did not constitute dissipation of the marital estate when the spouse had good
reason for her action. See Echols v. Echols, No. E1999-00619-COA-R3-CV, 2000 WL
688589 (Tenn. Ct. App. May 30, 2000). In Echols, the wife explained that she filed
separately due to legitimate concerns that her husband was under-reporting his income.
Id. at 6. This Court determined that the wife had a reasonable basis for her fear due to
certain of the husband’s business practices and that her action therefore did not amount to
dissipation of the marital assets. Id.
In the instant action, Husband never disputed that he had failed to timely file the
parties’ joint income tax returns for tax years 2011-2013. Husband’s testimony
demonstrated that he did not become concerned with filing these returns until after the
divorce proceedings were commenced. Although Husband claimed that Wife was
equally at fault for this failure due to her lack of cooperation, the trial court found
Husband’s credibility to be “highly suspect” and credited Wife’s testimony on this issue.
We emphasize that “where issues of credibility and weight of testimony are involved, this
Court will accord considerable deference to the trial court’s factual findings.” See Keyt,
244 S.W.3d at 327. Based on the evidence presented and the trial court’s assessment of
credibility, we determine that Wife maintained a reasonable concern regarding Husband’s
failure to timely file the parties’ federal income tax returns. Her decision to file
separately did not constitute dissipation of marital assets. We accordingly conclude
Husband’s issue regarding the allocation of this marital debt to be without merit.
VIII. Valuation of Other Property
Husband’s next issue addresses the value placed on certain items of personalty by
the trial court. Husband contends that the trial court adopted values for various items
18
from worksheets submitted by Wife.3 According to Husband, the trial court “chose” not
to hear testimony regarding these items.
Our review of the transcript does not bear out Husband’s contention. The parties
were afforded three days of trial within which to present evidence. The trial court did not
refuse to hear any testimony regarding the value of assets. In fact, upon the conclusion of
trial, discussion ensued among the court, counsel, and parties regarding items of
personalty that were identified on asset lists provided by the parties.4 The trial court
pointed out that there had been no testimony presented regarding valuation. After
fruitless discussion regarding whether either party was willing to take steps necessary to
sell the items, the court stated, “I’ll just divide them up.” Neither counsel objected to this
resolution. Furthermore, neither counsel sought to present additional testimony regarding
respective values. We therefore determine that any issue with regard to the trial court’s
valuation of certain of the parties’ personalty has been waived. See Waters v. Farr, 291
S.W.3d 873, 918 (Tenn. 2009) (stating that issues not raised in the trial court are waived
on appeal).
IX. COBRA Insurance Notification
Husband asserts that he is entitled to damages by reason of the failure of Wife’s
counsel to provide him with the appropriate notification regarding COBRA insurance.
Husband first raised this issue following entry of the March 2, 2016 Final Order by filing
an “Emergency Motion for Enforcement of Stay,” wherein Husband asserted that he had
not received notice regarding COBRA insurance conversion for his medical and dental
insurance. According to the record before this Court, however, Husband subsequently
filed a withdrawal of the motion, stating that he had received a notice of health
insurability as of September 13, 2016, which rendered his motion “moot.” Therefore,
this Court cannot fully analyze this issue despite its having been raised at the trial court
level, because the trial court never considered nor ruled upon it. See Dorrier v. Dark, 537
S.W.2d 888, 890 (Tenn. 1976) (“This is a court of appeals and errors, and we are limited
in authority to the adjudication of issues that are presented and decided in the trial courts .
. . .”); see also Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct.
App. 2000) (“As a general matter, appellate courts will decline to consider issues . . . that
were not raised and considered in the trial court.”); Hayes v. Gentry, 03A01-9303-CH-
00120, 1993 WL 191999, at *2 (Tenn. Ct. App. June 8, 1993) (“[S]ince this issue was not
adjudicated in the trial court, we cannot consider it on appeal.”). This issue, not having
been adjudicated by the trial court, may not be considered on appeal.
3
Presumably, Husband is referring to the numerous items of furniture and other household goods listed
on his late-filed property tabulation.
4
These asset lists do not appear in the appellate record.
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X. Failure to Prepare and Submit QDRO
Husband’s next issue also concerns enforcement of the trial court’s judgment.
Husband complains that Wife’s counsel has never submitted the required QDRO to the
trial court to effectuate the distribution of Wife’s pension. Again, because this issue was
not raised before or considered by the trial court, we cannot consider it on appeal. See
Dorrier, 537 S.W.2d at 890; Heatherly, 43 S.W.3d at 916; Hayes, 1993 WL 191999, at
*2.
XI. Attorney’s Fees
Finally, Husband argues that the trial court erred by failing to award him a greater
amount of attorney’s fees and costs due to Wife’s “deliberate stalling actions, frivolous
motions, non-appearance for the trial,” and other allegedly litigious tactics. At trial,
Husband presented this claim to the trial court and testified regarding the allegedly
dilatory actions by Wife and her counsel. In the March 2, 2016 Final Order, the trial
court made the following award:
Husband is awarded his attorney fees as a result of Wife’s attorney showing
up 40 minutes late for trial, 50 minutes late for depositions of the parties,
and for failure of Wife and her attorney to appear for a scheduled trial date,
for a total of four (4) hours at the rate of $250 per hour plus associated
court reporter fees for those delays.
In its subsequent March 21, 2017 order, the trial court affirmed the attorney’s fee award
to Husband in the amount of $1,000.00, while additionally awarding court reporter fees
of $180.42.
As this Court has previously explained with regard to an award of attorney’s fees:
Our review of an award of attorney’s fees is guided by the principle that
“‘the allowance of attorney’s fees is largely in the discretion of the trial
court, and the appellate court will not interfere except upon a clear showing
of abuse of that discretion.’” Mimms v. Mimms, 234 S.W.3d 634, 641
(Tenn. Ct. App. 2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359
(Tenn. 2005)). “Reversal of the trial court’s decision [regarding] attorney
fees at the trial level should occur ‘only when the trial court applies an
incorrect legal standard, reaches a decision that is illogical, bases its
decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.’” Church v.
Church, 346 S.W.3d 474, 487 (Tenn. Ct. App. 2010).
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Hernandez v. Hernandez, No. E2012-02056-COA-R3-CV, 2013 WL 5436752, at *8
(Tenn. Ct. App. Sept. 27, 2013). We determine no such abuse of discretion in this matter.
Therefore, we affirm the trial court’s award of attorney’s fees and court reporter
expenses.
XII. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment in all respects.
Costs on appeal are taxed to the appellant, Edwin B. Harrison, Jr. This case is remanded
to the trial court for enforcement of the judgment and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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