                                                                                        03/18/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               January 16, 2019 Session

     TIFFANY “WHITAKER” KRAMER v. PHILLIP JOHN KRAMER

                Appeal from the Chancery Court for Blount County
               No. 2016-018      Telford E. Forgety, Jr., Chancellor
                     ___________________________________

                           No. E2018-00736-COA-R3-CV
                       ___________________________________


In this appeal, the wife challenges the trial court’s division of the marital assets and
liabilities. We find no error and affirm the judgment of the trial court.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.

Robert M. Asbury, Knoxville, Tennessee, for the appellant, Tiffany “Whittaker” Kramer.

James H. Snyder, Jr., Alcoa, Tennessee, for the appellee, Phillip John Kramer.



                                       OPINION

                                  I. BACKGROUND

        The parties were married on April 20, 2013. No children were born of the
marriage. The plaintiff, Tiffany “Whitaker” Kramer (“Wife”), filed a complaint for
divorce on March 4, 2016, and an amended complaint for divorce on March 24, 2016,
after less than three years of marriage. The defendant, Phillip John Kramer (“Husband”),
filed an answer and counter-complaint for divorce on July 8, 2016. After a hearing on
May 2, 2017, a final decree of divorce was entered on September 5, 2017. The record
contains no transcript of the trial.

      Wife filed a motion to set aside final decree and offer of proof on October 4, 2017.
After a hearing held on February 27, 2018, the trial court denied the motion.

       Wife filed a timely appeal. No tabulation of marital assets and liabilities was
included in Wife’s brief, in violation of Rule 7 of the Tennessee Court of Appeals Rules.1


                                         II. ISSUES

              1. Did the trial court err in the application of Tennessee Code
              Annotated section 36-4-121 by failing to equitably divide the
              parties’ marital assets pursuant to the relative contributions of
              the parties.

              2. Should Husband’s attorney’s fees and the costs of the
              appeal be taxed to Wife for a frivolous appeal.


                             III. STANDARD OF REVIEW

       Because this case was tried without a jury, our review of the trial court’s factual
findings is de novo upon the record, accompanied by a presumption of correctness, unless
the preponderance of the evidence is otherwise. Tenn. R. Civ. P. 13(d). Our review of a
trial court’s conclusions of law is de novo upon the record with no presumption of
correctness. Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008).

       Our Supreme Court has elucidated the applicable standard of appellate review in a
case involving the proper classification and distribution of assets incident to a divorce 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 unless there is
              evidence which preponderates to the contrary. Tenn. R. App.

       1
         Wife late filed a motion to alter or amend her brief and to continue oral argument. We
found the continuance portion of the motion not well taken and denied it. We likewise find the
request to alter or amend the brief not well taken, and it is DENIED.
                                             -2-
             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 related 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). Furthermore, 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). 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.”).


                                   IV. DISCUSSION

                                            A.
                                           -3-
       Wife disagrees with the trial court’s division of the marital assets and debts. She
contends that the court did not consider her expenses in providing health insurance to
Husband and his son from a prior relationship. Wife also argues that she should have
been awarded $22,867.83 of Husband’s 401K benefits. Husband asserts that the record
presented by Wife does not allow for the proper review of the rulings of the trial court.
We note that Wife has not provided this court with a statement of the evidence or a
transcript of the trial in order for us to review the evidence presented regarding the issues
she asserts.

       Rule 24 of the Tennessee Rules of Appellate Procedure provides in pertinent part:

              (b) Transcript of Stenographic or Other Substantially
              Verbatim Recording of Evidence or Proceedings. Except as
              provided in subdivision (c), if a stenographic report or other
              contemporaneously recorded, substantially verbatim recital of
              the evidence or proceedings is available, the appellant shall
              have prepared a transcript of such part of the evidence or
              proceedings as is necessary to convey a fair, accurate and
              complete account of what transpired with respect to those
              issues that are the bases of appeal. Unless the entire transcript
              is to be included, the appellant shall, within 15 days after
              filing the notice of appeal, file with the clerk of the trial court
              and serve on the appellee a description of the parts of the
              transcript the appellant intends to include in the record,
              accompanied by a short and plain declaration of the issues the
              appellant intends to present on appeal. If the appellee deems a
              transcript of other parts of the proceedings to be necessary,
              the appellee shall, within 15 days after service of the
              description and declaration, file with the clerk of the trial
              court and serve on the appellant a designation of additional
              parts to be included. The appellant shall either have the
              additional parts prepared at the appellant’s own expense or
              apply to the trial court for an order requiring the appellee to
              do so. The transcript, certified by the appellant, the
              appellant’s counsel, or the reporter as an accurate account of
              the proceedings, shall be filed with the clerk of the trial court
              within 60 days after filing the notice of appeal. Upon filing
              the transcript, the appellant shall simultaneously serve notice
              of the filing on the appellee. Proof of service shall be filed
              with the clerk of the trial court with the filing of the
              transcript. If the appellee has objections to the transcript as
              filed, the appellee shall file objections thereto with the clerk
                                             -4-
of the trial court within fifteen days after service of notice of
the filing of the transcript. Any differences regarding the
transcript shall be settled as set forth in subdivision (e) of this
rule.

***

(c) Statement of the Evidence When No Report, Recital, or
Transcript Is Available.

If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available, or if the
trial court determines, in its discretion, that the cost to obtain
the stenographic report in a civil case is beyond the financial
means of the appellant or that the cost is more expensive than
the matters at issue on appeal justify, and a statement of the
evidence or proceedings is a reasonable alternative to a
stenographic report, the appellant shall prepare a statement of
the evidence or proceedings from the best available means,
including the appellant’s recollection. The statement should
convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of
appeal. The statement, certified by the appellant or the
appellant's counsel as an accurate account of the proceedings,
shall be filed with the clerk of the trial court within 60 days
after filing the notice of appeal. Upon filing the statement, the
appellant shall simultaneously serve notice of the filing on the
appellee, accompanied by a short and plain declaration of the
issues the appellant intends to present on appeal. Proof of
service shall be filed with the clerk of the trial court with the
filing of the statement. If the appellee has objections to the
statement as filed, the appellee shall file objections thereto
with the clerk of the trial court within fifteen days after
service of the declaration and notice of the filing of the
statement. Any differences regarding the statement shall be
settled as set forth in subdivision (e) of this rule.

***

(e) Correction or Modification of the Record. If any matter
properly includable is omitted from the record, is improperly
included, or is misstated therein, the record may be corrected
or modified to conform to the truth. Any differences
                              -5-
              regarding whether the record accurately discloses what
              occurred in the trial court shall be submitted to and settled by
              the trial court regardless of whether the record has been
              transmitted to the appellate court. Absent extraordinary
              circumstances, the determination of the trial court is
              conclusive. If necessary, the appellate or trial court may direct
              that a supplemental record be certified and transmitted.

              (f) Approval of the Record by Trial Judge or Chancellor. The
              trial judge shall approve the transcript or statement of the
              evidence and shall authenticate the exhibits as soon as
              practicable after the filing thereof or after the expiration of
              the 15-day period for objections by appellee, as the case may
              be, but in all events within 30 days after the expiration of said
              period for filing objections. Otherwise the transcript or
              statement of the evidence and the exhibits shall be deemed to
              have been approved and shall be so considered by the
              appellate court, except in cases where such approval did not
              occur by reason of the death or inability to act of the trial
              judge. In the event of such death or inability to act, a
              successor or replacement judge of the court in which the case
              was tried shall perform the duties of the trial judge, including
              approval of the record or the granting of any other appropriate
              relief, or the ordering of a new trial. Authentication of a
              deposition authenticates all exhibits to the deposition. The
              trial court clerk shall send the trial judge transcripts of
              evidence and statements of evidence.

       In the case at bar, no transcript of the trial has been filed that is properly certified
as required by Rule 24. Furthermore, no statement of evidence approved by the trial
judge is of record. As noted above, under Rule 24, it is the duty of the appellant “to
prepare the record which conveys a fair, accurate, and complete account of what
transpired in the trial court regarding the issues which form the basis of the appeal.” In re
M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005); see also Tenn. R. App. P. 24(b), (c).
Thus, in this case, it is Wife’s responsibility to provide the court with a transcript or a
statement of the evidence “from which we can determine whether the evidence
preponderates for or against the findings of the trial court.” In re M.L.D., 182 S.W.3d at
894-95. Inasmuch as we have no proper transcript or statement of the evidence, we must
presume that there was sufficient evidence to support the trial court’s factual findings. Id.
at 895; see Word v. Word, 937 S.W.2d 931, 932 (Tenn. Ct. App. 1996) (“In the absence
of a transcript, we must assume that ‘the record, had it been preserved, would have
contained sufficient evidence to support the trial court’s factual findings.’”) (quoting
Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992)).
                                              -6-
       The one transcript before us is from the hearing on the motion to set aside the final
decree and offer of proof. In that hearing, the trial court recognized the crux of Wife’s
complaint was that the division of marital assets and liabilities was not necessarily equal.
The trial court stated:

              The court looked at the testimony at the time [of the trial] and
              deemed its division of property to be an equitable one and of
              course, the court understands here that the argument
              presented by the wife is that well, look, judge, we understand
              that. It’s just got to be equitable. We understand that. But
              what we’re telling you is that it was not really equitable here
              and the court simply disagrees on that.

              And, by the way, I would make one other comment. You
              know, one of the things that the wife presents here in support
              of her argument relevant to the division of property and this is
              look, I paid health insurance during the marriage and I paid
              most of the mortgage during the marriage and therefore, I
              should have gotten some additional consideration upon the
              dissolution of the marriage.

              Generally speaking, the courts do not go back during the
              existence of the marriage and try to construct or reconstruct a
              day-by-day, week-by-week, month-by-month, year-by-year
              accounting of how much did the wife pay for, how much did
              the husband pay for . . . it’s impossible to do.

        As noted by Husband, we are being asked by Wife to ignore the lack of any record
of the testimony at trial, the lack of any statement showing how such alleged error was
“seasonably called to the attention of the trial judge with citation to that part of the
record,” the lack of “any citations to the record showing where the resultant prejudice is
recorded,” and the lack of any “statement of each determinative fact relied upon with
citation to the record” showing where the resultant prejudice is recorded. See Tenn. Ct.
App. R. 6. Wife urges us to consider certain exhibits, but we lack any record of the trial
court’s findings with respect to the exhibits.

       In our view, Wife has failed to present any proof to establish that the trial court
committed error. She has failed to present an adequate appellate record that allows for
the proper review of the issues she raises. See Chiozza v. Chiozza, 315 S.W.3d 482, 489
(Tenn. Ct. App. 2009).


                                           -7-
                                             B.

      Husband asks this court to award damages for frivolous appeal under Tennessee
Code Annotated section 27-1-122, which provides:

              When it appears to any reviewing court that the appeal from
              any court of record was frivolous or taken solely for delay,
              the court may, either upon motion of a party or of its own
              motion, award just damages against the appellant, which may
              include but need not be limited to, costs, interest on the
              judgment, and expenses incurred by the appellee as a result of
              the appeal.

The decision whether to award damages for a frivolous appeal rests solely in our
discretion. Chiozza, 315 S.W.3d at 493. “A frivolous appeal is one that is ‘devoid of
merit,’ or one in which there is little prospect that it can ever succeed.” Indus. Dev. Bd. v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995).

       Wife has failed to present this court with a record showing that she is entitled to
any relief whatsoever. As noted by Husband, Wife has failed to comply with the rules of
this court and the case law of this State relating to the presentation of a record on appeal.
We conclude that Wife’s appeal is so devoid of merit as to be characterized as frivolous.
Accordingly, we exercise our discretion to grant Husband’s request for attorney’s fees
and costs in defense of this appeal.


                                    V. CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded for a
hearing on Husband’s attorney’s fees and costs in the appeal. Costs of appeal are
assessed against the appellant, Tiffany “Whitaker” Kramer.



                                                  _________________________________
                                                  JOHN W. MCCLARTY, JUDGE




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