Facts: Husband, 60, and Wife, 44, divorced after 10 years of marriage.

Husband is a partner in a law firm where Wife works as a part-time hourly staff attorney. He earns around $1.5 million per year, while her earning capacity is closer to $190,000.

The 11-day trial included testimony from Husband’s CPA about his theory of “equalizing purchasing power” in which he argued the parties’ age disparity justified awarding more of the marital estate to Husband.

The trial court divided 59.4% to Husband and 40.6% to Wife, explaining:

No matter how you look at it, [Husband] will retire before [Wife] does, and he will be drawing down, rather than contributing to, his retirement funds. Further, these funds are tax-deferred, and [Husband] will have to pay taxes when he begins to withdraw them. As such, they are not a dollar-for-dollar equivalent to the parties’ nonretirement assets. Based on these considerations, the Court believes [Husband] should receive a larger share of the parties’ retirement assets. The Court will offset this award, however, by awarding [Wife] a larger share of the parties’ nonretirement “liquid” assets. [Wife] may then spend or invest any or all of that money as she sees fit.

Wife appealed.

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

Tennessee courts must equitably divide marital property and debt. When doing so, they must consider the factors found in Tennessee Code Annotated § 36-4-121(c). Here, two factors were of particular importance: (1) the parties’ age and (2) their relative ability for future acquisitions of capital assets and income.

Wife argued the trial court erred by finding age to be more important than each party’s relative ability to acquire assets and income in the future.

Husband responded that the trial court considered all the factors and never found that age is more important than income.

The Court agreed that the trial court’s focus on their age disparity was error:

[W]e agree with Wife at the trial court placed an inordinate focus on the age disparity between the parties. The much more impactful disparity between the parties is their capacity to acquire future assets or income…. Husband is a partner [in a law firm] and earns well over $1 million a year. Wife is a staff attorney who made considerable career sacrifices during the marriage. She earns far less than Husband. Even if Husband retires at age 70, he is much better positioned to earn large sums of money until then than Wife. Indeed, if Wife earns some $192,000 as she stipulated she can, she would still come out behind given the disparity with Husband. From the evidence before the trial court, Husband will earn millions of dollars more than Wife if they both work to age 70.

This clearly excessive emphasis on age rather than earning capacity is, under the facts of this case, reversible error by the trial court. We, therefore, vacate the judgment of the trial court as to the property division, and remand for a fresh division of the marital estate. On remand, the trial court is to arrive at a division that is as close to 50/50 as possible. This court finds that such a division is an equitable overall division when considering all the relevant factors and evidence presented in this case. To be sure, there is nothing inherently equitable about a 50/50 split; in some cases, a heavily imbalanced division may be equitable. This is not such a case.

The trial court’s judgment was reversed, and the case was remanded for an equal division of the marital estate.

Concurrence: Judge Davis wrote a concurring opinion to question the trial court’s astonishment at Wife’s claim that she spends $2000 a month on food for herself and her two teenagers:

Although the trial court found that Wife’s testimony was not credible in several respects, the trial court focused on Wife’s testimony regarding food expenses and expressed outrage over the amount. Yet, the trial court had no issue with Husband’s budget of $2600 per month for food for himself. I am perplexed by this discrepancy and further note that $2000 per month for food for three people (including two teenagers) is wholly reasonable, particularly given these parties’ incomes.

K.O.’s Comment: (1) The opinion says the trial court’s “clearly excessive emphasis on age rather than earning capacity” is reversible error. It would have been helpful if the Court elaborated more on this. It is unusual for an appellate court to find that the trial court placed undue emphasis on one statutory factor. Clearly, the trial court knew of the significant disparity in earning capacity. Readers would benefit from more explanation of the Court’s reasoning on this point.

(2) Because of an issue involving one of the parties’ children, the Court declined to use the parties’ last names in the style. This is to protect the anonymity of the parties’ child. The opinion then supplies precise information about where the parties work, making them easily identifiable. Such gratuitous detail is unnecessary and should have been kept out of the opinion. Appellate courts should be more mindful of cutting identifying information unless it matters, which it rarely does.

(3) Wife’s brief referred to the trial court with ill-advised and self-defeating language, e.g., the trial court declined to reopen the proof “because to do so would’ve been too much work,” the trial court said something “in very narcissistic fashion,” the trial court “put its own interests ahead of the best interests of a minor child.” Wife asked that the case be remanded “to a less busy court—one that has time to perform its functions properly; a court that is more interested in getting things right, instead of just getting them written.”

The Court noted such language is “deeply disrespectful,” adding:

It is mind-boggling that Wife and her attorneys would think the statements would be well-received by this Court. Wife’s disrespectful statements about the trial judge are neither amusing nor accurate. They do not assist this Court in resolving a single issue on appeal. Wife’s disrespect toward the trial judge serves only to mar her otherwise sound brief. These statements are utterly gratuitous, and inexplicably personal. There is no justification for that type of tone toward a judge in an appellate brief; no contextualization lessens its inappropriateness.

The Court “admonish[ed] Wife and her attorneys for the blatant disrespect shown to the trial judge in her brief,” noting that the comments “went to the very line of what would necessitate additional action on our part ….”

Such a self-inflicted wound is unnecessary. There is no scenario where language like this makes any sense. Unload on the trial judge to your spouse, your colleagues, or your dog. Without exception, keep it out of your appellate brief.

Julie C.W. v. Mitchell W. Jr. (Tennessee Court of Appeals, Middle Section, February 26, 2021).

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