Facts: In the parties’ divorce, a dispute arose over the existence of gold purchased as an investment during the marriage.

After hearing testimony from the parties and their adult son, the trial court found that the gold was purchased, it was kept in a safe controlled by Husband, that Husband was responsible for it being missing, that Husband’s testimony was inconsistent and lacked credibility, and that, consistent with the division of the marital assets, he owed Wife $300,000 for her one-half interest in the gold.

Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

When credibility and weight to be given testimony are involved, appellate courts must afford considerable deference to the trial court when the trial judge could observe the witnesses’ demeanor and hear in-court testimony.

Because trial courts can 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.

One of the bases for an award of attorney’s fees on appeal is that the appeal is frivolous per Tennessee Code Annotated § 27-1-122. A frivolous appeal is so devoid of merit that it has no reasonable chance of succeeding.

The Court found Husband’s appeal unavailing:

[W]e provide great deference to the trial court’s credibility determinations, which will not be overturned on appeal unless clear and convincing evidence proves otherwise. No such clear and convincing evidence exists in this case as to Husband’s credibility.

* * * * *

Based on the evidence presented during trial and the trial court’s finding that Husband was not credible, we find that Husband’s appeal had little prospect of success. We, therefore, hold that this appeal was frivolous, and we award Wife her attorney’s fees on appeal.

The Court affirmed the trial court’s judgment and remanded the case for determining the amount of Wife’s attorney’s fees.

K.O.’s Comment: (1) This case suggests that appeals that turn on a trial court’s credibility determinations are at risk of being deemed frivolous absent a convincing argument that the trial court erred in its credibility assessment. Appellate attorneys should take note.

(2) I will leave this quotation from the opinion here without comment:

Husband testified that he subsequently moved the gold from Peoples Bank back to the marital home shortly before “Trump’s election” in 2016 upon Wife’s request after their church “had a prophecy that President Obama would never come out of office” and Wife feared that they “wouldn’t be able to get in the bank to get it.” Wife confirmed that a prophecy existed about “the signs of the times” but stated that she was only referring to removing the money they had in the bank and that she did not know the gold was being kept in the bank. After Husband removed the gold from the bank, the gold was stored in the safe room in the downstairs of the home.

Dailey v. Dailey (Tennessee Court of Appeals, Eastern Section, July 13, 2020).