                                                                                          08/28/2020
                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    July 7, 2020 Session

               MARVIN DUANE JULIAN v. DEBRA ANN JULIAN

                    Appeal from the Circuit Court for Warren County
                      No. 2015-CV-328 L. Craig Johnson, Judge
                        ___________________________________

                             No. M2019-01573-COA-R3-CV
                         ___________________________________


In this divorce case, Husband/Appellant appeals the trial’s courts award of $200,000.00
to Wife/Appellee under the parties’ prenuptial agreement. This award was based on the
trial court’s finding that Husband’s net worth is at least $400,000.00. In their agreement,
the parties waived alimony; nonetheless, Husband sought an award of alimony in the trial
court. The trial court held that Husband did not meet his burden to show that he was a
public charge so as to overcome his waiver of alimony. Because the evidence does not
preponderate against the trial court’s findings, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Marvin Duane Julian, McMinnville, Tennessee, appellant, pro se.

Cindy Morgan, Sparta, Tennessee, for the appellee, Debra Ann Julian.


                               MEMORANDUM OPINION1

      1
          Rule 10 of the Court of Appeals of Tennessee provides:

      This Court, with the concurrence of all judges participating in the case, may
      affirm, reverse or modify the actions of the trial court by memorandum opinion
      when a formal opinion would have no precedential value. When a case is decided
      by memorandum opinion it shall be designated “MEMORANDUM OPINION”,
      shall not be published, and shall not be cited or relied on for any reason in any
      unrelated case.
                                     I. Background

       Appellant Marvin Duane Julian (“Husband”) and Appellee Debra Ann Julian
(“Wife”) were married in 1986. Prior to their marriage, the parties executed a prenuptial
agreement (“Agreement”). As is relevant to the instant appeal, the Agreement outlined a
schedule for lump-sum payments to Wife depending on the length of the marriage.
Here, based on the length of the parties’ marriage, Wife would receive the maximum sum
of $500,000.00, or an amount not to exceed one-half of Husband’s net worth.

        During most of the marriage, Husband was very successful in his real estate
businesses. For example, as of April 15, 1999, Husband’s business had assets in excess
of 2.6 million. Husband also invested heavily in the stock market. In addition to his
business holdings, as of July 22, 1999, Husband had personal assets in excess of 2.3
million as shown by his personal financial statement. In early 1999, the parties separated.
Later that year, the parties sought a divorce in Florida, where they resided at the time.
Ultimately, the parties dismissed the Florida divorce case. However, Wife claims that
after their reconciliation, Husband kept her from accessing any financial documents and
proceeded to hide his assets from her.

       Wife filed the instant divorce action on June 30, 2015. Prior to her filing, the
parties had been living separately for approximately 15 years. At the time she filed for
divorce, Wife claimed that Husband’s net worth was 3.1 million and sought enforcement
of the prenuptial agreement. Thereafter, the parties engaged in protracted discovery. By
order of January 14, 2019, the trial court granted the parties a divorce but reserved two
issues for separate hearing: (1) Husband’s request for alimony, and (2) the amount of
Husband’s assets subject to division under the parties’ prenuptial agreement.

        The reserved issues, which are the subject of the instant appeal, were tried on May
3, 2019. By order of August 8, 2019, the trial court held that: (1) Husband had not
overcome his waiver of alimony in the Agreement; (2) Husband suffered financial losses
of approximately 1.5 million after the separation but did not suffer a complete loss of all
assets; (3) Husband has assets of approximately $400,000.00 that could not be accounted
for, and (4) Wife is entitled to $200,000.00 under the Agreement. Husband appeals.

                                        II. Issues

      Husband raises two issues for review as stated in his brief:

             1.      Whether the trial court erred in finding that [Husband] had
      $400,000 in assets, despite the extensive evidence that he had sustained
      serious financial losses for more than a decade, is receiving public
      assistance, and has been declared indigent, as well as the trial court’s
      finding that there was no evidence that [Husband] had hidden assets.
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             2.      Whether the trial court erred in not awarding [Husband]
      alimony, despite being a public charge who satisfies the most important
      statutory factors for an award of alimony.

        In the posture of Appellee, Wife contends that Husband’s net worth, at the time of
the hearing, was in excess of 1 million. Wife also raises the additional issue of whether
she is entitled to her attorney’s fees on appeal.

                                III. Standard of Review

       This case was tried without a jury. Therefore, we review the trial court’s findings
of fact de novo with a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d). The trial court’s conclusions of law, however, are
reviewed de novo and “are accorded no presumption of correctness.” Brunswick
Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

       Furthermore, while we are cognizant of the fact that Husband is representing
himself in this appeal, it is well-settled that “pro se litigants are held to the same
procedural and substantive standards to which lawyers must adhere.” Brown v. Christian
Bros. Univ., No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App.
Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). This Court has held that
“[p]arties who choose to represent themselves are entitled to fair and equal treatment by
the courts.” Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000);
Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App.
1997). Nevertheless, “courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected to observe.”
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003); Edmundson v. Pratt,
945 S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4
(Tenn. Ct. App. 1995).
                                 IV. Husband’s Assets

       Based on the length of the parties’ marriage, their Agreement provides that Wife
will receive the following:

             As to the Final Dissolution of Marriage occurring after the end of the
      twentieth year and any time thereafter: $250,000.00 payable in twenty-five
      (25) equal monthly installments of $10,000.00 each together with a cash
      lump sum payment of $250,000.00 being paid at the end of the 25 month
      period for a total settlement of $500,000.00.
             In no event shall any of the above settlements be greater than the
      sum of 50% of [Husband’s] net worth as assessed at the time of the Final
      Dissolution of the marriage. . . .
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      In its August 8, 2019 order, the trial court made the following relevant findings
concerning Husband’s assets and Wife’s share of same under the Agreement:

             As to the property division issue governed under the prenuptial
      agreement, the Court notes that both sides in this case have been difficult in
      cooperating with discovery requests. This case has gone on too long with
      inaction on both sides. [Husband] has given enough proof to show that he
      sustained losses of just over One and One-Half Million Dollars
      ($1,500,000.00) to his holdings after the separation, but has failed to
      convince the Court that he has suffered a complete loss.
             Given the equities in this case and the fact that it appears that
      [Husband] has assets of around Four Hundred Thousand Dollars
      ($400,000.00) that he cannot account for, the Court splits the property in
      question and awards Ms. Julian Two Hundred Thousand Dollars
      ($200,000.00) of [Husband’s] assets.

        Turning to the record, at or around the time of the parties’ separation in 1999,
profit and loss statements submitted as Trial Exhibit 16 show Husband had a net worth of
approximately 4.9 million. This amount was comprised of business assets in the amount
of 2.6 million and personal assets of approximately 2.3 million. However, subsequent tax
returns show that, by 2008, Husband’s business was operating at a loss. Husband
testified that declines in the real estate market, coupled with unprofitable business
ventures, led to the insolvency of his company. Business tax returns support Husband’s
testimony concerning his business losses.

        Likewise, Husband’s personal net worth declined after 1999. Husband testified to
losses in the stock market. As set out in context above, the trial court inferentially
determined that Husband’s net worth had fallen to approximately 1.9 million since he
executed his profit and loss statement. Of this 1.9 million, the trial court found that
Husband sustained losses of “just over One and One-Half Million Dollars ($1,500,000)”
by the time of the hearing on May 3, 2019. Tax returns admitted into evidence show that
Husband’s personal wealth decreased steadily from the time of the parties’ separation.
Husband argues that he suffered losses in excess of his original net worth, i.e., 2.3
million, and that he is a pauper. Wife claims that Husband’s net worth at the time of the
May 3, 2019 hearing was in excess of 1 million. Having determined that Husband’s
proof supported claimed losses of just over 1.5 million, and based on its finding that the
remainder of Husband’s net worth, i.e., approximately $400,000.00, was unaccounted for,
the trial court set Husband’s net worth at that $400,000.00 and awarded Wife half of the
that amount pursuant to the parties’ Agreement.

       From our review of the evidence in this case, especially Husband’s convoluted
testimony concerning the transfer of large sums of money to his family members, we
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cannot conclude that the evidence preponderates against the trial court’s finding that
Husband’s net worth was approximately $400,000.00. On cross-examination by Wife’s
counsel, Husband would not give a clear answer as to the whereabouts of these funds, to-
wit:

       Q. Right now, though, for this court’s purposes you have no documents
       whatsoever showing where the $402,000 went. Is that fair to say?
       A. No, that’s not fair to say at all. You have all my income tax returns.
       Q. Well, your income tax returns doesn’t show where the money was
       deposited and what it was spent on . . .

From our review, Husband’s tax returns do not specifically account for the $402,000.00.
From its order, the trial court was not persuaded by Husband’s contention that he was not
in possession of the disputed amount. It is well settled that, “Where the trial court’s
factual findings are based on its determinations of the credibility of the witnesses, then
this Court will afford great weight to those credibility determinations and will not reverse
such determinations absent clear evidence to the contrary.” See McCaleb v. Saturn
Corp., 910 S.W.2d 412, 415 (Tenn. 1995) (citing Townsend v. State, 826 S.W.2d 434,
437 (Tenn. 1992)); see, e.g., Interstate Mech. Contractors, Inc. v. McIntosh, 229 S.W.
3d 674, 682 (Tenn. 2007) (finding that where “[t]he trial court had the opportunity to
observe the demeanor and gauge the credibility” of the witness, “we may infer that the
trial court found” that the witness’ testimony was credible or not).

       From our review of the record, Wife’s contention that Husband’s net worth is in
excess of 1 million is not supported by the evidence, nor is Husband’s contention that he
is a pauper. Rather, we conclude that the evidence does not preponderate against the trial
court’s finding that Husband’s net worth, at the time of the hearing, was $400,000.00. As
set out above, under the Agreement, Wife is entitled to one-half of the $400,000.00 found
by the trial court. Accordingly, we affirm the trial court’s award of $200,000.00 to Wife.

                          V. Husband’s Request for Alimony

       The parties’ Agreement provides, in relevant part:

       In the event the marriage is dissolved, for whatever reason, [Husband] and
       [Wife] agree that neither party shall make any claim whatsoever against the
       other for alimony of any sort. Both parties renounce any right to seek any
       support from the other for a standard of living which he or she has become
       accustomed to and/or any other compensation . . . .

      The Tennessee Supreme Court has previously ruled “that a voluntary and knowing
waiver or limitation of alimony in an antenuptial agreement is not per se void and
unenforceable as contrary to public policy. Such provisions will be fully enforced, unless
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enforcement will render one spouse a public charge.” Cary v. Cary, 937 S.W.2d 777,
782 (Tenn. 1996). The Cary Court specifically found that “the State’s interest in
providing adequate support for its citizens precludes specific enforcement of such a
contract provision if enforcement deprives one spouse of support that he or she cannot
otherwise obtain and results in that spouse becoming a public charge.” Id.

       Here, the trial court held that Husband did not show that he is a public charge.
Specifically, in its August 8, 2019 order, the trial court explained that

       [i]t was apparent from the testimony that [Husband] was a man of wealth
       and property during most of the marriage. He did suffer some major
       setbacks during the economic decline of 2008 and subsequently.
       [Husband’s] main argument [for an award of alimony] is that he is a public
       charge. He did present proof that he is on food stamps. However, he
       presented no proof that he cannot work. In fact, he is currently taking care
       of his elderly father by his own choice and lives for free with him. The
       presented evidence is not enough to overcome his waiver of alimony in the
       prenuptial agreement. [Husband] has failed to establish by the burden of
       proof that he is a “public charge.”

Indeed, there is no indication in the record that Husband is unable to work. Despite his
economic downturn and evidence that he is currently receiving food stamps, from the
record there can be no doubt that Husband is a savvy businessman. Historically, he has
accumulated significant wealth. Husband currently cares for his aged father and has
chosen not to pursue other employment. While we appreciate Husband’s decision, the
fact remains that, by all evidence, he is able to provide for himself. This is especially so
in view of our affirmance of the trial court’s determination that his net worth is at least
$400,000.00. From the totality of the proof, we agree with the trial court that Husband
has provided insufficient proof to show that he is a public charge so as to overcome his
waiver of alimony in the Agreement.

                   VI. Wife’s Request for Appellate Attorney’s Fees

       The parties waived attorney’s fees in their Agreement, to-wit:

       In the event that any divorce proceedings are instituted between the parties
       involving this Agreement, marriage, divorce, separation, child custody,
       support, maintenance or any other matter between the parties, each agrees
       to be responsible for his or her own attorneys fees.

       Having waived an award of attorney’s fees, Wife’s only ground for recoupment of
her appellate attorney’s fees is for frivolous appeal under Tennessee Code Annotated
section 27-1-122, which provides:
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      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 this Court’s
discretion. Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). “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). We conclude that this appeal is not so devoid of merit as to characterize it as
frivolous. Accordingly, we exercise our discretion to decline Ms. Julian’s damages for
frivolous appeal.

                                    VII. Conclusion

       For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed to the Appellant, Marvin Duane Julian, for all of which
execution may issue if necessary.




                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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