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Kahn v. Kahn6/6/2005
urt erred when it ordered Husband to pay the entire balance of the guardian ad litem fees.
For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
Standard of Review
We review a trial court's division of marital property de novo upon the record affording a presumption of correctness to the trial court's findings of fact. Dellinger v. Dellinger, 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997) (citing Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993)). A trial court is given wide discretion in the manner in which it divides marital property, and we give its decisions on appeal great weight. Id. (citing Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)). The trial court's distribution of marital property is presumed correct unless the evidence preponderates otherwise. Id. (citing Tenn. R. App. P. 13(d); Wallace, 733 S.W.2d at 107).
Additionally, we give the trial court broad discretion in the award of guardian ad litem fees. Townsend v. Bingham, No. 02A01-9801-CV- 00019, 1999 Tenn. App. LEXIS 226, at *18 (Tenn. Ct. App. Apr. 6, 1999) (citing McKeehan v. McKeehan, No. 02A01-9407-CV-165, 1995 Tenn. App. LEXIS 838 (Tenn. Ct. App. Nov. 21, 1995)). Absent a clear showing of an abuse of discretion on the part of the trial court, we may not disturb the trial court's award of guardian ad litem fees on appeal. Id. at *18-19 (citing Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983)).
Marital Property Division
Husband argues that the trial court erred when it determined that the Summer property was "marital property" and in its division of the marital estate. To guide Tennessee courts in making an equitable distribution of marital property, a trial court must consider the following factors:
(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;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) 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;
(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. ยง 36-4-121(c) (2003). Further, the Tennessee Code defines "marital property" and "separate property" as follows:
(b) For purposes of this chapter:
(1) (A) "Marital property" means all real and personal property, both ta
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