               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               August 26, 2015 Session

      KIM LEWIS NEAS v. PATRICIA ERSKINE HEFFERNAN NEAS

                 Appeal from the Chancery Court for Greene County
                  No. 20130046    Douglas T. Jenkins, Chancellor


            No. E2015-00292-COA-R3-CV-FILED-DECEMBER 15, 2015


This appeal arises from a divorce. After almost 29 years of marriage, Kim Lewis Neas
(“Husband”) filed for divorce against Patricia Erskine Heffernan Neas (“Wife”) in the
Chancery Court for Greene County (“the Trial Court”). After a trial, the Trial Court,
among other things, divided the parties’ marital assets and liabilities. Husband appeals to
this Court. The central issues in this appeal include the Trial Court’s valuation of
business assets awarded to Husband and the Trial Court’s determination of Husband’s
income. Because Wife leaves this marriage with more in assets than Husband and in an
otherwise comparable financial position, we reverse the Trial Court’s award of attorney’s
fees to Wife. We also modify the allocation of marital debt and remand for the Trial
Court to effectuate this new allocation. Otherwise, we affirm the judgment of the Trial
Court.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J., and D. KELLY THOMAS, JR., SP. J., joined.

Jerry W. Laughlin, Greeneville, Tennessee, for the appellant, Kim Lewis Neas.

Jessica C. McAfee, Greeneville, Tennessee, for the appellee, Patricia Erskine Heffernan
Neas.
                                        OPINION

                                       Background

                Husband and Wife married in 1985. At the time the divorce complaint was
filed, the parties had one child still of minority age, a 15 year-old son (“the Child”). Both
parties are in their mid-50s. The parties jointly owned a business during the marriage,
Neas Welding & Steel Fabrication, which Husband operated. Wife worked as a
bookkeeper, but also attended nursing school and earned an associates degree in nursing.
Wife worked two jobs during the marriage. In March 2013, Husband filed suit for
divorce against Wife in the Trial Court. Wife previously had filed for divorce against
Husband in 2011, but had voluntarily dismissed that suit. Wife filed an answer and
counterclaim to Husband’s suit for divorce. A struggle over discovery ensued, with Wife
alleging that Husband was less than cooperative. This case was tried in August 2014.
We now review the testimony relevant to the issues before us.

              Husband testified that Wife’s attitude toward him changed when a
downturn in the economy resulted in losses at the welding business. During the last few
years of the parties’ marriage, Husband slept on the couch. Husband introduced an
exhibit demonstrating that Wife had removed $12,000 from a business account in
October of 2012 and transferred it to her exclusive control. Husband also testified to the
value of his business’s assets. Husband stated that the total value of the business
equipment was $55,175. Taking into account all else, including accounts receivable,
Husband testified that the total net value of the assets of the business was $80,329.
Husband testified that in January 2014 he learned of $25,000 spent by Wife on allegedly
cosmetic changes to the parties’ residence. Regarding personal property, Husband
provided a list of guns he owned which he valued at $2,175. Husband also had a
motorcycle. Husband testified he owned no other unspecified personal property that he
had carried off as alleged by Wife. Husband stated that in June 2014, he borrowed
$15,000 from a friend, Butch Shaw, to help pay off a loan. Husband stated that his total
income for 2013 consisted of his compensation from the welding business of $29,080 as
reflected on his W-2. Husband also testified to significant charitable donations that he
had made.

               Ashley Bradley (“Bradley”), a bookkeeper at the welding business for three
years, testified. Wife previously had served as the bookkeeper. Bradley testified that
some of Husband’s personal expenses were paid by checks of the business, but that she

                                             -2-
separated Husband’s personal expenses from business expenses. Expenses of Husband
found to be personal expenses were not treated as business expenses, but rather were
charged to a shareholder receivable account.

              Jay Guinn (“Guinn”), a welder and fabricator, testified as well. Guinn had
inspected a significant piece of equipment, a large break press, at the welding business.
Guinn stated that the machine had electronic problems that rendered it unreliable.

              Blake Wilson (“Wilson”), an auctioneer of machinery, testified for Wife
regarding the fair market value of the business assets of the company. Husband objected
strongly to Wilson’s testimony because Wilson had not personally inspected any of the
equipment. Husband’s counsel, however, stipulated to Wilson’s expertise. Wilson had
sat down with Will Wall, another auctioneer employed by the same company as Wilson
and who had been hired by Husband and, therefore, was familiar with the equipment, and
reviewed Wall’s report and evaluation method. The Trial Court permitted Wilson to
testify. Wilson arrived at a fair market value of $128,100. Wilson acknowledged that
Wall determined that the total forced liquidation value of the equipment was $65,825.

               Wife testified that her monthly income until shortly before trial was
$5,509.25. As of trial, Wife worked part-time at her nursing job, earning $4,114 per
month. Wife also had an accounting job. Wife asserted that Husband had personal
property in his possession of $30,000 that he had removed, but acknowledged this was a
“guesstimate.” For his part, Husband sharply denied having any additional, unspecified
personal property in his possession. Wife testified: “[H]e never would provide me with a
list of the furniture and electronics and all the stuff he has in his business . . . [$30,000]
was kind of our guesstimate because I didn’t know what all he took.”

               In October 2014, the Trial Court entered the final decree of divorce,
finding, in relevant part, as follows: Wife was entitled to a divorce based upon Husband’s
inappropriate marital conduct; Husband’s monthly income was $5,500; Husband
possessed certain unspecified personal property worth $15,000. Approximately 55% of
the marital assets, around $700,000 in all, were awarded to Wife, to Husband’s 45%.
Among other marital assets, Husband received the welding business and Wife received
the marital residence. Approximately 99% of marital debt in the vicinity of $50,000 was
assigned to Husband, with Wife’s share of the marital debt limited to one-half of the
Child’s $508 school tuition.

              Husband filed a motion to amend findings of fact. Husband also filed a
motion to alter or amend findings pertaining to Husband’s gross monthly income. The
Trial Court entered an order awarding discretionary costs to Wife. In February 2015, the
Trial Court entered an order on all rule 59 motions, denying Husband’s requested relief
                                             -3-
and awarding partial attorney’s fees to Wife. The Trial Court reserved the outstanding
issue of Husband’s alleged contempt but otherwise rendered the order final. The Trial
Court, choosing a figure within the range established by the evidence presented at trial,
clarified that it found the assets of the welding business to be worth $110,000. Husband
timely filed an appeal to this Court.

                                        Discussion

              Although not stated exactly as such, Husband raises the following issues on
appeal: 1) whether the Trial Court erred in determining that Husband’s monthly income
is $5,500; 2) whether the Trial Court erred in finding that the net fair market value of the
assets of Neas Welding & Steel Fabrication is $110,000; 3) whether the Trial Court erred
in finding that Husband held certain unspecified personal property with the value of
$15,000; 4) whether the Trial Court failed to divide the marital assets equitably in
accordance with the relevant statutory factors; 5) whether the Trial Court erred in
imposing upon Husband some 99% of the marital liabilities; 6) whether the Trial Court
erred in requiring Husband to pay $4,500 in attorney’s fees to Wife; and, 7) whether the
Trial Court erred in finding that Wife, rather than Husband, had established grounds for
divorce.

             Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). As our Supreme Court has instructed:

       When credibility and weight to be given testimony are involved,
       considerable deference must be afforded to the trial court when the trial
       judge had the opportunity to observe the witnesses’ demeanor and to hear
       in-court testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
       1997) (quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)).
       Because trial courts are able to observe the witnesses, assess their
       demeanor, and evaluate other indicators of credibility, an assessment of
       credibility will not be overturned on appeal absent clear and convincing
       evidence to the contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783
       (Tenn. 1999).

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).

                                            -4-
              In Neamtu v. Neamtu, No. M2008-00160-COA-R3-CV, 2009 WL 152540
(Tenn. Ct. App. Jan. 21, 2009), no appl. perm. appeal filed, this Court discussed our
standard of review with respect to issues surrounding the valuation of marital assets. We
stated:

             Once property has been classified as marital property, the court
      should place a reasonable value on property that is subject to division.
      Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL
      21077990, at * 11 (Tenn. Ct. App. May 13, 2003). The parties have the
      burden to provide competent valuation evidence. Kinard v. Kinard, 986
      S.W.2d 220, 231 (Tenn. Ct. App. 1998). When valuation evidence is
      conflicting, the court may place a value on the property that is within the
      range of the values presented. Watters v. Watters, 959 S.W.2d 585, 589
      (Tenn. Ct. App. 1997). Decisions regarding the value of marital property
      are questions of fact, Kinard, 986 S.W.2d at 231; thus, they are not second-
      guessed on appeal unless they are not supported by a preponderance of the
      evidence. Smith, 93 S.W.3d at 875.

Neamtu, 2009 WL 152540, at *4.

            Tennessee law sets out a number of factors for trial courts to consider in
making an equitable division of marital property, including:

      (1) The duration of the marriage;

      (2) The age, physical and mental health, vocational skills, employability,
      earning capacity, estate, financial liabilities and financial needs of each of
      the parties;

      (3) The tangible or intangible contribution by one (1) party to the
      education, training or increased earning power of the other party;

      (4) The relative ability of each party for future acquisitions of capital assets
      and income;

      (5)(A) The contribution of each party to the acquisition, preservation,
      appreciation, depreciation or dissipation of the marital or separate property,
      including the contribution of a party to the marriage as homemaker, wage
      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;

                                            -5-
      (B) For purposes of this subdivision (c)(5), dissipation of assets means
      wasteful expenditures which reduce the marital property available for
      equitable distributions and which are made for a purpose contrary to the
      marriage either before or after a complaint for divorce or legal separation
      has been filed.

      (6) The value of the separate property of each party;

      (7) The estate of each party at the time of the marriage;

      (8) The economic circumstances of each party at the time the division of
      property is to become effective;

      (9) The tax consequences to each party, costs associated with the
      reasonably foreseeable sale of the asset, and other reasonably foreseeable
      expenses associated with the asset;

      (10) The amount of social security benefits available to each spouse; and

      (11) Such other factors as are necessary to consider the equities between the
      parties.

Tenn. Code Ann. § 36-4-121(c) (2014).

              A trial court has wide discretion in dividing the interest of the parties in
marital property. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991). As
noted by this Court in King v. King, when dividing marital property:

      The trial court’s goal in every divorce case is to divide the parties’ marital
      estate in a just and equitable manner. The division of the estate is not
      rendered inequitable simply because it is not mathematically equal, Cohen
      v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d
      424, 427 (Tenn. 1988), or because each party did not receive a share of
      every item of marital property. Brown v. Brown, 913 S.W.2d [163] at 168.
      . . . In the final analysis, the justness of a particular division of the marital
      property and allocation of marital debt depends on its final results. See
      Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).

King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (quoting Roseberry v.
Roseberry, No. 03A01-9706-CH-00237, 1998 WL 47944, at *4 (Tenn. Ct. App. Feb. 9,
1998), no appl. perm. appeal filed).
                                             -6-
             We first address whether the Trial Court erred in determining that
Husband’s monthly income is $5,500 for purposes of child support. According to
Husband, his income should be found to be no more than $2,700 per month, as reflected
by his W-2, and those personal expenses that were duly accounted for. Husband points to
remarks the Trial Court made, as follows:

      And then as to child support itself, I find that mother’s income is $4,200.00
      a month. Father’s income, on his W-2 is $3,000.00 a month. However, the
      mother has, and based upon father’s admission too really, mother’s
      convinced The Court that there are certain expenses that he has monthly
      that are paid for him by this business that he has control of. And so I find
      that his actual monthly income, in accordance with the way it should be
      computed in the child support guidelines, is actually $5,500.00 a month. So
      plug those numbers into a worksheet and that will give you your child
      support amount.

                                          ***

      MR. CREECH: Your Honor, one other point of clarification as to the
      $5,500.00 on Mr. Neas’s income. Does Your Honor make a ruling as the
      charitable contributions which are voluntary? At $1,000.00 a month, I
      think that should be factored in on top, in addition to...
      THE COURT: No, don’t...
      MR. LAUGHLIN: Well, Your Honor, I think that’s already taken that into
      consideration.
      THE COURT: Yeah, let’s not pile on. You’re doing all right. The Court’s
      not making any specific finding. I’m just saying based on what I heard, I
      think his income is more like $5,500.00 a month and I make that finding.
      Now, and I’m not going to punish him for giving, I’m not going to take it
      up a notch higher than that just because he gives some charitable
      contributions. That’s to his credit. That’s good.
      MR. CREECH: Well, when it’s more than child support, though, Your
      Honor, I think that’s not to his credit.
      THE COURT: Well,...
      MR. CREECH: That’s...
      THE COURT: ...Mr. Creech, don’t snatch defeat from the jaws of victory
      here.
      MR. CREECH: I’ll sit down.



                                           -7-
              Perhaps the most controversial sticking point in this case regards Husband’s
income. Wife has argued throughout the case that Husband conceals the true extent of
his income by blurring the lines between his personal finances and those of the business.
Husband, on the other hand, insists that his annual income is what is in black and white
on his W-2—around $30,000. Wife argues that Husband’s actual lifestyle is incongruent
with his stated income. One major fact in the record supporting Wife’s position is the
evidence of Husband’s substantial charitable donations. According to Husband, the Trial
Court, as reflected in its remarks quoted above, did not factor this into its finding.
Indeed, Husband asserts that the Trial Court never actually made a specific finding as to
his income.

              We disagree with Husband’s interpretation of the Trial Court’s remarks and
findings. It appears to us that the Trial Court did consider the evidence presented as to
Husband’s apparent capacity to spend, including his charitable donations, in excess of his
stated income. However, when pressed by Wife’s counsel to go even further, the Trial
Court declined. Having reviewed the record carefully, we find that the evidence does not
preponderate against the Trial Court’s finding Husband’s monthly income to be $5,500.
Evidence was available to the Trial Court that Husband’s income was more than what
was shown on his W-2. Husband argues that he and his bookkeeper were careful to keep
Husband’s personal and business expenses separate. The Trial Court, to some extent,
implicitly did not credit this explanation. This was within the Trial Court’s prerogative
as the determiner of credibility, and we give strong deference to trial courts’ credibility
determinations. We affirm the Trial Court as to this issue.

               We next address whether the Trial Court erred in finding that the net fair
market value of the assets of Neas Welding & Steel Fabrication is $110,000. Husband
argues that Wife’s expert, Wilson, should not have been allowed to testify as he did not
personally inspect the assets of the welding business. According to Husband, Wilson was
unfamiliar with the actual values of the equipment, and whether they functioned properly
or not. However, Husband cited to no law dictating that because the expert did not
personally inspect the property at issue, he could not testify as to its value. It appears the
Trial Court did consider Wilson’s having relied on Wall’s inspection and report on the
equipment and not having personally inspected the equipment in taking into account the
weight to be afforded Wilson’s testimony. This being so, we find that the Trial Court
adequately fulfilled its role as gatekeeper. We also observe that Wilson’s status as an
expert was undisputed. With Wilson’s fair market value of $128,000 for the business
assets, plus the accounts receivable to total approximately $154,000, and Husband’s low
end value of approximately $80,000 total, the Trial Court had a defined range in which to
choose a value. The Trial Court did not err in finding the value to be $110,000 as it fell
within the range of values established at trial, and the evidence does not preponderate
against the finding.
                                             -8-
              We next address whether the Trial Court erred in finding that Husband held
certain unspecified personal property with the value of $15,000. Wife testified to various
items that Husband allegedly removed from the home. Wife then submitted an estimate
of $30,000. Husband denied any such unspecified personal property in his possession,
and submitted a value of $0. The Trial Court, again, heard the testimony, had a defined
range within which to select a figure, and arrived at $15,000. We will not disturb the
Trial Court’s implicit findings of credibility given the record before us. Further, we find
that the evidence does not preponderate against this finding by the Trial Court.

               We next address whether the Trial Court failed to divide the marital assets
equitably in accordance with the relevant statutory factors. The Trial Court certainly
would have better facilitated appellate review by citing to the statutory factors it
considered. However, the Trial Court’s order and its reasoning are not so impossible to
discern from the record such that we are unable to proceed on this issue. Among other
assets, Husband received the welding business and Wife received the marital residence.
Wife, with her nursing background and degree and bookkeeper experience, is well-
equipped to be financially secure going forward. Husband continues to own and operate
his business. When it comes to the division of a marital estate, we do not tweak or
second guess trial courts. The evidence does not preponderate against the Trial Court’s
finding that the division of the marital estate, while not equal, was equitable between
these parties.

               We next address whether the Trial Court erred in imposing upon Husband
some 99% of the marital liabilities. Husband specifically requests that Wife be held
solely responsible for her $12,000 debt to the business and for $13,810 owed on a BP
credit card. Husband notes correctly that, under an analysis of allocation of marital debt,
we look to who incurred the debt, the debt’s purpose and who benefitted from the debt.
The parties have a comparable income. However, the Trial Court’s allocation of marital
debt is hugely favorable to Wife, and serves to change a 55/45 division of the marital
estate to something more akin to 60/40 in Wife’s favor. Wife has presented no
satisfactory argument such that could justify this disparity, nor do we find any support for
it in the record. We modify the allocation of marital debt to assign 55% of the marital
debt to Husband and 45% to Wife. We remand this case to the Trial Court to effectuate
this change.

              We next address whether the Trial Court erred in requiring Husband to pay
$4,500 in attorney’s fees to Wife. Wife argues that the award of attorney’s fees is
justified because of Husband’s alleged obstinacy in the discovery process. However, we
do not believe this is the correct standard to employ on review given the Trial Court’s
decision on this issue. While the Trial Court did state in its final judgment that “it does
                                            -9-
appear to the Court that Husband has been less than forthcoming in the discovery process
. . .,” this statement appears to have been addressed more directly to Wife’s contempt
motion which the Trial Court did not resolve. Further, the Trial Court’s award of
attorney fees to Wife is not stated by the Trial Court to be that of a sanction for
Husband’s actions in the discovery process. In fact, language was specifically deleted
from the final judgment that provided that Wife was being awarded her attorney fees as a
sanction against Husband. Moreover, Wife, as indicated above, will leave the marriage
with greater assets than Husband.

               For these reasons, the Trial Court did not employ the correct standard or
criteria in arriving at an award of attorney’s fees for Wife, and merely noting Husband
was less than forthcoming in discovery will not suffice. In order to establish an award of
attorney’s fees in a divorce as alimony in solido rather than as a sanction, there must be
consideration of the relevant alimony statutory factors including the parties’ relevant
needs and abilities to pay. Such an analysis is lacking in this case as to the award of
attorney fees. We reverse the Trial Court’s award of attorney’s fees to Wife.

              The final issue we address is whether the Trial Court erred in finding that
Wife, rather than Husband, had established grounds for divorce. Specifically, Husband
objects to the Trial Court’s having found him to have engaged in inappropriate marital
conduct. Husband points to Wife’s testifying that she “didn’t want a divorce in the first
place.” However, Wife, at other times, testified, among other things, to Husband not
having time for her. Taken as a whole, we do not conclude that the evidence
preponderates against the Trial Court’s finding that Wife, rather than Husband,
established grounds for divorce. We further note that our resolution of this issue does not
impact or influence our decision as to any of the other issues as already discussed in this
opinion.

             In summary, except for the Trial Court’s award of attorney’s fees to Wife,
which we reverse and, our modification of the allocation of marital debt so that on
remand the Trial Court is to effectuate a new allocation of marital debt that leaves
Husband with 55% of the marital debt and Wife with 45%, we affirm the judgment of the
Trial Court.




                                           -10-
                                       Conclusion

              The judgment of the Trial Court is affirmed, in part, and, reversed, in part,
and this cause is remanded to the Trial Court for further proceedings consistent with this
opinion and for collection of the costs below. The costs on appeal are assessed equally
one-half against the Appellant, Kim Lewis Neas, and his surety if any, and one-half
against the Appellee, Patricia Erskine Heffernan Neas.


                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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