                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 21, 2015 Session


                     MARK A. GRANT v. KATHY H. GRANT

               Appeal from the Circuit Court for Montgomery County
                 No. MCCCCVDN122589 Ross H. Hicks, Judge

                         ________________________________

         No. M2014-01835-COA-R3-CV – Filed May 12, 2016
                     _________________________________


After a long-term marriage, the wife obtained a divorce based on the husband’s inappropriate
marital conduct. The trial court determined the value of the marital property, divided the
marital estate, and awarded the wife both alimony in futuro and alimony in solido. The
husband appealed, arguing the court erred in valuing his ownership interests in three general
partnerships, in dividing the marital estate, and in awarding the wife alimony. After
reviewing the extensive record in this case, we affirm the trial court’s decision.

    Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which ANDY D. BENNETT and
RICHARD H. DINKINS, JJ., joined.

Gregory D. Smith and Brenton H. Lankford, Nashville, Tennessee, for the appellant, Mark A.
Grant.

Larry Hayes, Jr. and Ashley S. Rudy, Nashville, Tennessee, for the appellee, Kathy H. Grant.


                                        OPINION

                I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       On October 22, 2012, Mark A. Grant (“Husband”) filed a complaint for absolute
divorce from Kathy H. Grant (“Wife”) in the Circuit Court for Montgomery County,
Tennessee claiming irreconcilable differences. Wife filed an answer and counterclaim,
alleging Husband was guilty of inappropriate marital conduct. The court granted Wife a
divorce on the ground of inappropriate marital conduct based on Husband’s admitted
adultery.

        The parties did not dispute the classification of their property interests. The focus in
the trial court was on the valuation and division of those interests. The trial court held a two-
day hearing to determine: (1) the appropriate value and equitable distribution of the marital
estate; (2) whether Wife should be awarded alimony in future; and (3) whether to award Wife
her attorneys’ fees and costs.

                                 A. PROOF AT THE HEARING

1. Testimony of the Parties

       Husband and Wife, at the time of the hearing, were in their fifties. They married each
other twice. During their first marriage, they had one son, now an adult, and Wife spent his
early years as a full-time homemaker. After eleven years of marriage, Husband and Wife
divorced briefly and then remarried in 1992.

       During the second marriage, Husband continued to be the primary wage earner and
Wife, a homemaker. Husband is a successful real estate developer. He is the sole owner of
Grant Construction, Inc. (“GCI”), a residential construction company. He also has a minority
interest in several real estate development partnerships, and he is a fifty-percent partner in
Clarksville Bonding, a bail-bonding company. Husband has earned a gross annual income of
over one million dollars in each of the last five years. In 2012, his personal financial
statement listed his net worth at $10.4 million.

       Husband and Wife enjoyed a good standard of living. In 2011, they established the
Grant Family Trust for the benefit of their adult son. They owned a nice house in Clarksville
and a lake house in Kentucky but, otherwise, did not spend lavishly. As Husband related,
“we always had the option, if we wanted to do something, we could.” Wife testified they
traveled to destinations such as Mexico and the Grand Caymans.

       Husband testified that, when he first started GCI, he obtained construction loans to
operate the business. When his financial situation improved, he began his current practice of
loaning personal funds to GCI for construction projects. He also invested funds he inherited
from his parents in GCI. The loans Husband made to GCI from the parties’ personal
accounts are represented on GCI’s books as a promissory note. While the amount of the note
fluctuates, at the time of the hearing, it totaled $1,845,435. Since 2009, Husband has
received between $200,000 and $400,000 each year as wages from GCI. He testified his
accountant determined the amount of his salary each year based on tax considerations.

                                               2
       When the parties’ son reached school age, Wife began to work part-time for the local
school system. At Husband’s request, she quit her job and went to work for GCI. She ran
errands, did clerical work, and eventually, did some bookkeeping for the company. Over the
course of a year in the late 1990s, Husband stopped working at GCI because he was
experiencing panic attacks and suffering from lethargy and depression. During this time,
Wife supported Husband emotionally and increased her involvement with GCI. She
continued to work for GCI until early 2013 when the parties separated. While, on paper,
Wife was compensated for her work at GCI, in reality, her salary was reinvested in the
business.

       Husband has a minority ownership interest in three general partnerships: Fox
Meadow, Fox Crossing and Fields of Northmeade. These partnerships buy land, develop it
for residential subdivisions, and sell the individual lots to builders, including GCI. The
partnerships do not pay realtor commissions when selling these lots. Husband has a twenty
percent interest in Fox Meadow, which owns the Fox Meadow subdivision. He has a fifty
percent interest in Fox Crossing, which owns the Fox Crossing subdivision and twenty-eight
acres of undeveloped adjacent land. He also has a thirty-three percent interest in Fields of
Northmeade. Fields of Northmeade owns three subdivisions, the Fields of Northmeade,
Crosswinds, and Wellington Fields, and a substantial amount of undeveloped adjacent land.1
In recent years, Husband’s annual income from these partnerships has varied from $350,000
to over $1 million.

       Husband testified that, when he told Wife he wanted a divorce, he gave her the option
of keeping the marital home or moving to a new home. She chose to move to a new home
that Husband purchased for her, and Husband remained in the marital residence.

       Wife filed a statement listing her anticipated income and expenses after the divorce.
Wife is currently unemployed and has no plans to seek employment. She testified she has no
marketable skills and the skills she obtained working at GCI are not transferrable to another
employment situation. She estimated her total monthly expenses to be $11,074. A portion of
that monthly total is due to an anticipated monthly mortgage on a new home Wife plans to
build. Wife testified she never intended to remain in her current residence on a long-term
basis. She simply needed to move quickly after her husband filed for divorce.

       Husband admitted he was having an affair during the marriage. Husband spent a
significant amount of marital funds for the benefit of his paramour during the pendency of

        1
         The appraisal reports submitted by the parties indicate Fields of Northmeade owns over 70 acres of
undeveloped land adjacent to Wellington Fields and 24.59 acres of undeveloped land adjacent to Crosswinds.
Husband testified at the hearing that the seventy-acre parcel had been developed for a subdivision and lots
were ready to sell.

                                                    3
the divorce in violation of the court’s statutory injunction. Husband testified he also paid his
attorneys and his expert witnesses from marital funds.

       Husband admitted that he had an unspecified amount of cash in a safe in his home that
he failed to disclose. He also failed to disclose all of his bank accounts or to provide the
proper authorizations for Wife’s attorney to obtain information about his bank accounts.
Husband also withheld information about real property he owned through his real estate
partnerships and the note receivable from GCI.

2. Valuation Testimony

       Both parties presented evidence of the value of the marital property. On appeal,
Husband only contests the trial court’s valuation of his ownership interest in the real estate
development partnerships. Thus, we will only summarize the valuation evidence relevant to
these partnerships.

       George Pritchett, Husband’s appraiser, provided an opinion as to the value of the
subdivisions and undeveloped land owned by the partnerships. Mr. Pritchett testified he was
instructed to value the assets as of December 31, 2013, even though he viewed the properties
several months later. He admitted that, if improvements had subsequently been made to the
properties, the appraised values would increase.

        In appraising the subdivisions, Mr. Pritchett used the subdivision development or
anticipated use methodology. This methodology assumes the owner sells all available lots at
fair market value to one hypothetical purchaser. To arrive at a present value, he projected
future lot revenues, subtracted the expenses of ownership, and discounted that amount back
to present value. As part of his assumption of the expenses of ownership, Mr. Pritchett
deducted a seven percent cost of sale. Mr. Pritchett testified he made this deduction because
most owners would incur such costs. On cross-examination, he agreed that, if he eliminated
this deduction, his appraised value would increase by approximately four percent.

       Wife hired two appraisers, Mark Young and Larry Sharp, to value the partnership
assets. Each appraiser appraised separate properties and provided values as of March 2014.
Both experts used the same methodology as Mr. Pritchett, but neither of Wife’s experts
deducted cost of sale as an expense of ownership.

       Husband hired Michael Wallace to value his interest in the real estate development
partnerships. Mr. Wallace used a net asset value approach. He assumed the partnership
assets had the value provided by Mr. Pritchett. He admitted that, if Mr. Pritchett’s appraised
values were faulty, it would affect his ultimate determination of value. He then deducted the
fair market value of the partnership debt to arrive at an equity valuation.

                                               4
       Next, he applied a discount for Husband’s minority ownership interest. Mr. Wallace
explained that it was appropriate to apply a lack of control discount whenever an owner was
not in the position to control a business. Using data from a control premium study, he
determined a base lack of control discount and compared his results to the amount of lack of
control discounts previously approved by Tennessee courts. Then, he applied a
corresponding discount to each partnership.

        Mr. Wallace also applied a discount for lack of marketability. He agreed Husband had
no intention of selling his interests but found a discount for lack of marketability would still
be necessary in determining value. He defined the discount as “the gauge of a readily
available market to turn a particular interest into cash.” He also explained that the
partnership agreements had provisions restricting a partner’s ability to sell his interest. Based
on restricted stock studies and prior Tennessee cases concerning valuation of closely-held
businesses, Mr. Wallace arrived at a base discount amount. He then calculated a pro rata
discount for each partnership. Thus, he applied an eighteen percent discount for lack of
marketability to Fields of Northmeade, a twelve percent discount to Fox Crossing, and a
thirty percent discount to Fox Meadow.

      Wife’s valuation expert, Scott Womack, used the same valuation methodology as
Mr. Wallace. However, he used the appraised values provided by Mr. Young and Mr. Sharp.
He agreed a lack of control discount was appropriate in view of Husband’s minority
ownership position. He disagreed, however, with the application of a discount for lack of
marketability. He opined that a discount for lack of marketability should not be applied when
Husband had no intention of selling his interest.

       As additional evidence of value, Wife submitted Husband’s personal financial
statements since 2009. In those statements, Husband valued his partnership interests
substantially higher than Mr. Wallace’s value. Vernon Weakley, another minority partner in
Fields of Northmeade and Fox Meadow, testified he valued his partnership interest higher
than Mr. Wallace’s estimation as well.

                                 B. CIRCUIT COURT RULING

       The trial court issued a final decree on September 11, 2014. With regard to Husband’s
interest in the real estate development partnerships, the court determined that Mr. Pritchett’s
appraised values for the subdivision properties were artificially low. The court found Wife’s
appraisals were more accurate because the date of these appraisals was closer to the date of
the hearing. The court also found Mr. Pritchett should not have deducted cost of sale in light
of the evidence that Husband never incurred such costs when selling subdivision lots.

     The court considered the evidence presented by both valuation experts and found
Mr. Womack’s valuation more credible. The court was concerned by the large discounts for
                                         5
lack of marketability used by Mr. Wallace. With regard to Fields of Northmeade, the court
noted Husband’s testimony that a large portion of the previously undeveloped land had been
developed and was currently being sold, which increased the value of the partnership assets.
Also, one of Husband’s partners had testified he valued his ownership interest in this
partnership at a much higher value than Mr. Wallace. Based on the evidence at the hearing,
the court chose to apply a “slight discount for marketability” instead of the eighteen percent
used by Mr. Wallace.

       The court used a similar analysis for valuing Husband’s interest in Fox Meadow and
Fox Crossing. In both partnerships, the court chose the appraised values closer to the date of
the hearing. The court rejected the use of a cost of sale discount in the sale of subdivision
lots. The court also found it inappropriate to apply such a large discount for lack of
marketability in the absence of proof Husband intended to sell his interests.

       Once the court valued all the marital assets, the court equitably divided the marital
estate. The court chose a relatively equal distribution based on the length of this marriage.
The court awarded three real estate properties, including the marital residence and its
furnishings to Husband. The court awarded another house, with its furnishings to Wife.
Each party also received one vehicle. Husband also received a golf cart and fishing boat.
The court agreed with the parties’ suggestion that Husband be awarded his various business
interests because he had the expertise and the ability to operate them. Because the court
awarded these interests to Husband, to balance the division, the court awarded Wife a
substantial portion of the parties’ bank accounts and the note receivable from CGI.

        The court found Husband had lied several times during this case. He lied about when
his affair began and trips he had taken during the marriage with his paramour. Since filing
for divorce, Husband had spent substantial marital funds on his paramour in contravention of
the statutory injunction prohibiting such behavior. With regard to Husband’s assets, the court
specifically found Husband had “either withheld information or was less than forthright
about the information he disclosed, making it difficult for Wife and her counsel to obtain
reliable information.”

        After considering the statutory factors, the court awarded Wife alimony in futuro of
$10,000 per month. The court found Wife was 53 years old, unemployed, relatively
uneducated, with limited job experience. Husband, on the other hand, had consistently
earned over one million dollars a year. Because Husband had been awarded all of his
income-producing business assets, the court determined he would be able to continue his
high earnings in the future. The court found Wife, on the other hand, could not maintain the
same standard of living enjoyed during the marriage without substantially encroaching on the
assets awarded to her in the divorce. Based on these findings, the court concluded Wife was
economically disadvantaged and incapable of rehabilitation.

                                              6
        The court also awarded Wife her attorneys’ fees. The court noted Husband’s attempts
to hide his assets had increased the amount of her fees and Husband had paid his attorneys’
fees from marital assets. In addition to attorneys’ and expert witness fees already awarded,
the court ordered Husband to pay an additional $58,500 to Wife for her remaining balance.

                                        II. ANALYSIS

       Husband raises a number of issues on appeal. He contends the trial court erred in not
applying a lack of marketability discount when valuing his interests in three real estate
development partnerships. With regard to the division of the marital estate, Husband argues
the trial court erred in its evaluation of the parties’ future earning capacity, in its
consideration of his contributions of separate property to the marital estate, in not considering
the tax consequences of the division, and in awarding most of the liquid assets to Wife.
Husband also appeals the court’s award of alimony in futuro and attorneys’ fees to Wife.

                            A. VALUATION OF MARITAL ASSETS

       We begin our analysis with Husband’s contention the trial court erred in its valuation
of his partnership interests. As this court stated in Wallace v. Wallace, 733 S.W.2d 102
(Tenn. Ct. App. 1987):

                      The value of marital property is a fact question. Thus, a
              trial court’s decision with regard to the value of a marital asset
              will be given great weight on appeal. In accordance with Tenn.
              R. App. P. 13(d), the trial court’s decisions with regard to the
              valuation and distribution of marital property will be presumed
              to be correct unless the evidence preponderates otherwise.

                      The value of a marital asset is determined by considering
              all relevant evidence regarding value. The burden is on the
              parties to produce competent evidence of value, and the parties
              are bound by the evidence they present. Thus the trial court, in
              its discretion, is free to place a value on a marital asset that is
              within the range of the evidence submitted.

Id. at 107 (citations omitted).

       Both parties presented expert testimony as to the value of Husband’s partnership
interests. A major difference between the expert opinions was the use of a large discount for
lack of marketability. According to Mr. Wallace, when using the fair market value standard
to value a business interest, “it is almost compulsory to consider the impact [lack of
marketability] has on the interest.” Mr. Womack did not apply a similar discount based on
                                            7
his belief that Tennessee courts would not allow such a discount in a divorce case in the
absence of proof the interest was to be sold.

       The trial court found a large discount for lack of marketability was inappropriate in
this case. The court applied a “slight discount” for lack of marketability to the Fields of
Northmeade partnership because “Husband might be compelled to sell some portion of his
assets in order to accomplish the property divisions ordered by the Court while still
maintaining and supporting the remaining business interests.” The court applied no lack of
marketability discount to the Fox Meadow partnership or the Fox Crossing partnership. In
both instances, the trial court noted Husband had no intention of selling his interest in the
partnerships.

        Valuation experts apply discounts for lack of marketability to reflect the lack of
liquidity of an ownership interest, i.e. how quickly and easily it can be converted into cash.
Patrice L. Ferguson & John E. Camp, Valuation Basics and Beyond: Tackling Areas of
Controversy, 35 Fam. L.Q. 305, 324 (2001). Thus, experts consider using this type of
discount when no ready market exists for an interest or when the provisions in a partnership
agreement restrict the ability of a partner to liquidate the interest. Edwin T. Hood et al.,
Valuation of Closely Held Business Interests, 65 UMKC L. Rev. 399, 449-50 (1997).
Generally, applicability of the use a lack of marketability discount depends on the
characteristics of the ownership interest being valued, not whether the owner of the interest
actually intends to sell the interest. See id.

       In the context of a proceeding involving the valuation and division of marital assets,
courts sometime find application of a lack of marketability discounts inappropriate, but in
many instances, the decision to apply the discount is seen as discretionary. See Stephen A.
Hess, Annotation, Use of Marketability Discount in Valuing Closely Held Corporation or Its
Stock, 16 A.L.R.6th 693 (2006).2 We also conclude the decision is discretionary and

        2
          With respect to valuing closely held corporations, another instance in which a lack of marketability
discount is often appropriate, we recognize the approach of courts in other states is somewhat mixed:

                 Dissolution of marriage proceedings are somewhat unique in that stock is often not
        transferred during the proceeding, but rather is valued and left in the hands of one of the
        parties subject to an adjustment in the way other assets are distributed. Courts disagree as to
        the propriety of utilizing marketability discounts when valuing shares in a marital dissolution
        proceeding. Some courts view the equities of valuation as similar to those in a dissenter rights
        case in which the absence of a voluntary transfer precludes the use of a marketability
        discount, and hold instead that the Court must assign full proportionate value of a party’s
        interest without reduction for lack of marketability. Other courts value the stock under the
        traditional measure of “fair market value” and utilize discounts where properly invoked, or
        choose not to utilize discounts based on the specific facts before the court—rather than
        imposing a legal bar on such discounts.

                                                       8
dependent on the facts of the case. See, e.g., Barnes v. Barnes, No. M2012-02085-COA-R3-
CV, 2014 WL 1413931, at *9 (Tenn. Ct. App. Apr. 10, 2014), appeal denied (Sept. 18, 2014)
(finding lack of marketability discount inappropriate under the facts); Halliday v. Halliday,
No. M2011-01892-COA-R3-CV, 2012 WL 7170479, at *5 (Tenn. Ct. App. Dec. 6, 2012)
(finding lack of marketability discount applicable to husband’s interest in one limited liability
company but not to husband’s interest in another limited liability company based on the
facts). Under the facts of this case, we find no abuse of discretion in the trial court’s
application of a “slight” discount for lack of marketability for one general partnership but not
applying a discount for the other two. “Placing a value on a minority interest in a business is
not an exact science.” Owens v. Owens, 241 S.W.3d 478, 489 (Tenn. Ct. App. 2007). This
same logic applies to valuation of a minority interest in a general partnership. “Since
valuation evidence is inherently subjective, a trial court’s valuation decisions need not
coincide precisely with the valuation opinions offered into evidence.” Id.

        Here, the trial court’s determination of value is within the range of evidence offered
by the parties. The court heard the testimony of the appraisers and found the appraised
values closer to the date of the hearing were more accurate. The timing of the valuation of
marital assets is within the trial court’s discretion. Wallace, 733 S.W.2d at 106. The court
also found Mr. Pritchett erroneously deducted cost of sale when appraising the subdivisions.
Mr. Wallace agreed his final value would increase if the appraised values he used were
artificially low. The court also had additional evidence in this record, including the
testimony of Vernon Weakley and Husband’s personal financial statements, that evidenced a
value higher than the value found by Mr. Wallace. Resolving this type of factual dispute is
uniquely the role of the trial court. See Powell v. Powell, 124 S.W.3d 100, 104-05 (Tenn. Ct.
App. 2003). We cannot say the evidence preponderates against the court’s decision.

                          B. EQUITABLE DIVISION OF THE MARITAL ESTATE

       After valuing the marital property, the court’s next task is equitably dividing it
between the parties. Owens, 241 S.W.3d at 489. To reach an equitable division, the trial
court must weigh the relevant statutory factors. Tenn. Code Ann. § 36-4-121(c) (Supp.
2015);3 Larsen-Ball v. Ball, 301 S.W.3d 228, 234-35 (Tenn. 2010). The trial court’s division


16 A.L.R.6th 693, 711 (internal cross-references omitted).
        3
            The court must 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;
                          (3) The tangible or intangible contribution by one (1) party to the
                  education, training or increased earning power of the other party;
                                                        9
is entitled to great weight on appeal and should not be overturned unless it “lacks proper
evidentiary support or results in some error of law or misapplication of statutory requirements
and procedures.” Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007) (quoting Herrera v.
Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). The division of marital property “is
not a mechanical process.” Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003). In
light of the particular facts of the case, some statutory factors may be more relevant than
others. See Tate v. Tate, 138 S.W.3d 872, 875 (Tenn. Ct. App. 2003). “We review the trial
court’s findings of fact de novo with a presumption of correctness and honor those findings
unless the evidence preponderates to the contrary.” Larsen-Ball, 301 S.W.3d at 235; Tenn.
R. App. P. 13(d).

        Husband takes issue with the trial court’s evaluation of the parties’ earning capacity.
See Tenn. Code Ann. § 36-4-121(c)(2). The evidence in this case does not preponderate
against the court’s finding that Husband has a much higher earning capacity than Wife.
Husband is a successful real estate developer with an ownership interest in five businesses.
He has earned a substantial income whether the focus is on gross or net income. Wife has no
business experience other than working for Husband, no college degree, and no income.
Contrary to Husband’s assertions, Wife’s employment at GCI did not provide her with the
skills to earn an income comparable to his. Both parties agreed Wife lacks the expertise to

                        (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.

Tenn. Code Ann. § 36-4-121(c).
                                                      10
operate Husband’s businesses. Although Husband contends he will be unable to achieve his
same level of financial success after the divorce, this record reflects he will have the skills
and means to continue to be successful.

        Husband asserts the trial court failed to consider his contribution of Clarksville
Bonding and his inheritance money to the marital estate. One factor the court considers in
dividing marital property is the contribution of each party to the “acquisition, preservation,
appreciation, depreciation or dissipation” of the marital estate. Tenn. Code Ann. § 36-4-
121(c)(5)(A). While the trial court’s opinion does not expressly mention Husband’s
contribution of this separate property, we find no reversible error in the court’s consideration
of this factor. In evaluating the separate contributions of the parties, the court must give
equal weight to the contributions of a party as a homemaker, if he or she fulfilled that role.
Id. Husband testified Wife was a good mother who spent many years caring for their child.
The court also found Wife made substantial contributions to the marital estate when she
supported Husband through his period of illness by helping to keep GCI operating. In its
discretion, the trial court could find both parties had made equal contributions to the marital
estate especially in light of the longevity of this marriage. See Tenn. Code Ann. § 36-5-
121(c)(2) (2014) (“The general assembly finds that the contributions to the marriage as
homemaker or parent are of equal dignity and importance as economic contributions to the
marriage.”). Moreover, the trial court also specifically found Husband had dissipated marital
assets during his affair, another appropriate consideration under this factor.

        Husband also argues the trial court erred in not considering the tax consequences of
the division. See Tenn. Code Ann. § 36-4-121(c)(9). According to Husband, his portion of
the marital estate is not as valuable as Wife’s because of his tax obligations. Since Husband
does not intend to dispose of any of his assets in the near future, his only tax consequence
from this division is future income tax liability. See Jekot v. Jekot, 232 S.W.3d 744, 749
(Tenn. Ct. App. 2007) (stating it would be pure speculation to attempt to estimate tax
consequences in the absence of proof a spouse intends to sell a particular asset). Every
spouse in a divorce must pay income taxes on post-divorce income. This record contains no
proof of any additional tax consequences. We find no error in the trial court’s consideration
of this factor.

        “In the final analysis, the appropriateness of the trial court’s division depends on its
results.” Altman v. Altman, 181 S.W.3d 676, 683 (Tenn. Ct. App. 2005). The parties have
accumulated a sizable marital estate. After considering the relevant statutory factors, the trial
court awarded 51.83% of the marital estate to Husband4 and 48.17% to Wife. An essentially

        4
          Husband argues the trial court erroneously included his future earnings in valuing his portion of the
marital estate, citing Morey v. Morey, No. 01-A-01-9506-CV00243, 1995 WL 739565, at *1 (Tenn. Ct. App.
Dec. 15, 1995). The sole issue on appeal in Morey was the proper classification of post-divorce income under
a work-for-hire employment contract. Id. at *1. We find Morey inapplicable to the issues in this case. To the
                                                     11
equal division in a long marriage such as this one5 is appropriate. See Phelps v. Phelps, No.
M2010-00856-COA-R3-CV, 2011 WL 2535026, at *6 (Tenn. Ct. App. June 24, 2011)
(noting the general presumption that a long-term marriage supports an essentially equal
division of the marital estate). Husband’s reliance on Nesbitt v. Nesbitt, No. M2006-02645-
COA-R3-CV, 2009 WL 112538 (Tenn. Ct. App. Jan. 14, 2009) and Hoggatt v. Hoggatt, No.
E2013-00508-COA-R3-CV, 2014 WL 1901019 (Tenn. Ct. App. May 12, 2014) to argue for a
greater portion of the estate is misplaced. Both cases involved relatively short-term
marriages in which the equities differed from the instant case.

       Finally, Husband asserts the overall division of the estate is inequitable because the
court awarded the bulk of the liquid assets to Wife. Husband contends his lack of available
cash will negatively impact his ability to operate his businesses. Once the trial court awarded
the business interests to Husband, the trial court had no other option than to award a
substantial portion of the remaining assets to Wife. See Goodwin v. Goodwin, No. E2009-
01085-COA-R3-CV, 2010 WL 669244, at *11 (Tenn. Ct. App. Feb. 25, 2010). “The trial
court was not required to provide liquidity to either or both of the parties; the court’s only
responsibility was to divide the estate in an equitable fashion.” Brock v. Brock, 941 S.W.2d
896, 903 (Tenn. Ct. App. 1996). We cannot say the evidence preponderates against the trial
court’s division.

                                        C. ALIMONY IN FUTURO

        We next turn to the trial court’s award of $10,000 per month to Wife as alimony in
futuro. “[T]rial courts have broad discretion to determine whether spousal support is needed
and, if so, the nature, amount, and duration of the award.” Gonsewski v. Gonsewski, 350
S.W.3d 99, 105 (Tenn. 2011). In reviewing the trial court’s award of alimony, we apply an
abuse of discretion standard. Id. “An abuse of discretion occurs when the trial court causes
an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an
injustice.” Id.

      Alimony in futuro is “intended to provide support on a long-term basis until the death
or remarriage of the recipient.” Id. at 107; Tenn. Code Ann. § 36-5-121(f)(1) (2014). This

extent Husband’s future earnings are included in the valuation of his business interests, Husband submitted
proof of the value of his business interests as going concerns, and he is bound by the evidence he presented.
Wallace, 733 S.W.2d at 107.
        5
         In considering the duration of the parties’ marriage, the trial court combined the length of their two
marriages. Stacking the parties’ two marriages was improper, see Flanagan v. Flanagan, 656 S.W.2d 1, 3
(Tenn. Ct. App. 1983), but this error does not affect the outcome of this case. Even considering the length of
the second marriage alone, the parties’ marriage was of a long duration.

                                                     12
long-term support is awarded when one spouse is relatively economically disadvantaged and
rehabilitation is not feasible. Id. Rehabilitation is not feasible if,

                the disadvantaged spouse is unable to achieve, with reasonable
                effort, an earning capacity that will permit the spouse’s standard
                of living after the divorce to be reasonably comparable to the
                standard of living enjoyed during the marriage, or to the post-
                divorce standard of living expected to be available to the other
                spouse, considering the relevant statutory factors and the
                equities between the parties.

Tenn. Code Ann. § 36-5-121(f)(1). Even though awards of this type of spousal support are
disfavored, alimony in futuro may be awarded under the proper circumstances. Bratton v.
Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); see Gonsewski, 350 S.W.3d at 109.

      Before awarding alimony, the court considered the relevant statutory factors. Tenn.
Code Ann. § 36-5-121(i) (2014).6 During this long-term marriage, Wife fulfilled the role of

      6
          The relevant factors include:

                         (1) The relative earning capacity, obligations, needs, and financial
                resources of each party, including income from pension, profit sharing or
                retirement plans and all other sources;
                         (2) The relative education and training of each party, the ability and
                opportunity of each party to secure such education and training, and the
                necessity of a party to secure further education and training to improve such
                party's earnings capacity to a reasonable level;
                         (3) The duration of the marriage;
                         (4) The age and mental condition of each party;
                         (5) The physical condition of each party, including, but not limited
                to, physical disability or incapacity due to a chronic debilitating disease;
                         (6) The extent to which it would be undesirable for a party to seek
                employment outside the home, because such party will be custodian of a
                minor child of the marriage;
                         (7) The separate assets of each party, both real and personal,
                tangible and intangible;
                         (8) The provisions made with regard to the marital property, as
                defined in § 36-4-121;
                         (9) The standard of living of the parties established during the
                marriage;
                         (10) The extent to which each party has made such tangible and
                intangible contributions to the marriage as monetary and homemaker
                contributions, and tangible and intangible contributions by a party to the
                education, training or increased earning power of the other party;
                         (11) The relative fault of the parties, in cases where the court, in its
                discretion, deems it appropriate to do so; and
                                                      13
homemaker while Husband was the wage earner. Both parties made significant contributions
to the marriage. They enjoyed a high standard of living. While they did not spend lavishly,
their financial means provided them with the ability to do whatever they wished. Husband
has admitted he was at fault in the demise of this marriage.

        The disparity in relative earning capacity between these spouses is clearly established.
Husband has been earning well over $600,000 per year after taxes. After this divorce he will
retain ownership of all of his business interests and should continue to earn a good standard
of living. While he may be forced to seek construction loans in the short term, his experience
and business acumen should allow him to quickly overcome this hurdle. Moreover, he will
continue to receive partnership7 and rental income. The loss of the relatively minimal
amount of interest income he previously received should not have a significant impact on his
future earnings.

       By contrast, Wife is unemployed with no appreciable work history other than working
for Husband’s business. The skills Wife acquired during her time at GCI will not equip her
to obtain more than a minimum wage job. At age 53, it is difficult to imagine what type of
additional training Wife could obtain to enable her to be employed at a higher rate of pay
before she reached retirement age. See Jekot, 232 S.W.3d at 753 (agreeing Wife, at 55 years
of age, would have difficulty competing for employment even with additional training).

       Although Wife was awarded almost half of the marital estate, without support, Wife
will be forced to quickly deplete those assets to meet her living expenses. Husband contends
she could meet her needs by simply investing the cash she was awarded. Husband’s own tax
returns reveal the fallacy in Husband’s argument. In 2013, Husband’s interest income from
the parties’ cash assets was $13,409, an amount insufficient to cover Wife’s anticipated
monthly living expenses of $11,074. While Husband argues Wife’s anticipated expenses are
speculative, the trial court heard the testimony of both parties and accepted Wife’s evidence
of need. We will not disturb the trial court’s determinations of credibility and weight of
testimony without clear and convincing countervailing evidence. Wells v. Tennessee Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999).


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

Tenn. Code Ann. § 36-5-121.
        7
            Husband argues the trial court erred in considering his future income from the real estate
development partnerships in his ability to pay alimony because he was awarded these interests in the division
of the estate. Husband’s reliance on Tennessee Code Annotated § 36-4-121(b)(1)(E) to support his argument
is misplaced. In determining alimony, the court may consider income from assets awarded in the division of
the marital estate “to the extent the asset will create additional income after the division.” Tenn. Code Ann.
§ 36-4-121(b)(1)(E) (Supp. 2015).
                                                     14
        The most important considerations in determining spousal support are the
“disadvantaged spouse’s need and the obligor spouse’s ability to pay.” Gonsewski, 350
S.W.3d at 110. This record supports the trial court’s finding that Husband has the ability to
pay alimony. Wife also established she is in need of support. We find no abuse of discretion
in the trial court’s award.

                                    E. ATTORNEYS’ FEES

        Finally, we turn to Husband’s argument that the trial court erred in ordering him to
pay an additional $58,500 to Wife for her remaining attorneys’ fees. “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.” Aaron v. Aaron, 909
S.W.2d 408, 411 (Tenn. 1995). Generally, an award of attorneys’ fees to a spouse is
appropriate if the spouse lacks sufficient funds to pay their own legal expenses. Koja v.
Koja, 42 S.W.3d 94, 98 (Tenn. Ct. App. 2000). Wife’s portion of the marital estate is her
main source of future income. She is not required to use her source of future income to pay
her legal expenses. See Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). The
trial court specifically found Husband’s actions during the pendency of this divorce increased
the amount of Wife’s legal expenses and Husband used marital funds to pay his own
expenses. We find no abuse of discretion in the trial court’s decision to award Wife an
additional $58,500 as alimony in solido.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court.

                                                    _________________________________
                                                    W. NEAL MCBRAYER, JUDGE




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