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Posted by: Tanja Trezise on Jun 3, 2015

Court: TN Court of Appeals

Attorneys 1:

Amy J. Farrar, Murfreesboro, Tennessee, and Lanier Fogg, Memphis, Tennessee, for the appellant, Steven A. Holdsworth.

Attorneys 2:

George Lawrence Rice, III and Mary Louise Wagner, Memphis, Tennessee, for the appellee, Wendy Alford Holdsworth.

Judge(s): GIBSON

This is an appeal from an extremely contentious divorce. The parties married in 1994 and had one child together during the marriage. Husband filed for divorce in 2011. In July 2013, the trial court entered a final decree of divorce. Among other things, the trial court found that Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse Wife that amount. The trial court also entered a permanent parenting plan that designated Wife the primary residential parent and provided a residential parenting schedule. As part of its permanent parenting plan and based on its calculation of the parties? respective incomes, the trial court set Husband?s child support obligation and ordered Husband to pay Wife $34,109 in retroactive child support. Finally, the trial court awarded Wife $4,000 per month as alimony in futuro and $461,586 as alimony in solido to reimburse Wife for her attorney?s fees and expenses. Husband filed a notice of appeal challenging the trial court?s rulings.

Prior to Husband?s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff?s deputy discovered a marijuana plant growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the permanent parenting plan to impose certain restrictions on Husband?s parenting time. Among other things, Wife sought to condition Husband?s parenting time on his girlfriend?s submission to and passing of random drug tests. In March 2014, the trial court ruled that a material change of circumstance occurred following the entry of the July 2013 order and entered a modified permanent parenting plan that incorporated Wife?s proposed restrictions. Husband filed a separate appeal from that order, and the two cases were consolidated for appeal to this Court.

Having thoroughly reviewed issues raised by the parties and the record on appeal, we conclude that while the trial court did not err in finding that Husband dissipated marital assets by writing checks to his girlfriend, Wife is not entitled an award equal to the full amount of the dissipation. We modify the amount of the dissipation award to $7,816.53 to reflect Husband?s one-half interest in the dissipated amounts. We affirm the trial court?s allocation of parenting time. While we also affirm the trial court?s decisions to award Wife child support and retroactive child support, we conclude that the trial court based the amount of those awards on a determination of the parties? respective incomes that is not supported by a preponderance of the evidence. Accordingly, we vacate the trial court?s ruling as to the amount of those awards and remand this matter for further proceedings consistent with this opinion. Next, we reverse the trial court?s award of alimony in futuro. Given the facts of this case, we conclude that Wife is a candidate for transitional alimony and direct the trial court on remand to determine the appropriate amount and duration of such an award. While we affirm the trial court?s decision to modify the permanent parenting plan, we conclude that because Husband?s girlfriend was not a party to the proceedings, the trial court erred in setting conditions on Husband?s parenting time based on her compliance with provisions of the permanent parenting plan. Finally, we conclude that the trial court did not apply a proper legal standard in awarding Wife her attorney?s fees and expenses and reached an illogical result. We reverse the trial court?s award of attorney?s fees. We decline to award attorney?s fees associated with this appeal to either party.