text:
    Robert Stewart SHOFNER v. Ann Margaret Kalisz SHOFNER.
    Court of Appeals of Tennessee, at Nashville.
    Sept. 9, 2004 Session.
    Dec. 23, 2004.
    Order Denying Petition for Rehearing Jan. 11, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      John E. Herbison, Nashville, Tennessee, for the appellant, Ann Margaret Kalisz Shofner.
    John J. Hollins, Sr., and James L. Weatherly, Jr., Nashville, Tennessee, for the appellee, Robert Stewart Shofner.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

in which PATRICIA J. COTTRELL and FRANK G. CLEMENT, JR., JJ„ joined.

This appeal involves an acrimonious dispute over the custody of three children between the ages of eight and twelve. Following a contentious ten-year marriage, the children’s parents both sought a divorce and custody of the children in the Circuit Court for Davidson County. The trial judge originally assigned to the case devised a temporary parenting plan that placed the eldest child with his mother and the two youngest children with their father. Thereafter the original trial judge disqualified herself, and the case was assigned to a new trial judge. The newly assigned trial judge declined to revisit her predecessor’s custody and support order and eventually entered a final decree (1) declaring the parents divorced in accordance with TenmCode Ann. § 36-4-129(b) (2001), (2) approving the parent’s marital dissolution agreement, and (3) making the temporary parenting plan permanent. On this appeal, the mother takes issue with the decision to designate the father the primary residential parent of the two youngest children. We have determined that the successor trial judge erred by (1) failing to comply with the requirements of Tenn. R. Civ. P. 63 after the case was reassigned, (2) declining to consider the pending post-trial motions, and (3) refusing to permit the mother to make an offer of proof regarding the circumstances of the children. Despite these serious procedural errors, we have conducted our own independent review of the record and have determined that it contains no factual or legal basis for overturning the parenting plan at this time.

I.

Ann Margaret Kalisz Shofner (now referred to as “Dr. Kalisz”) and Robert Stewart Shofner (“Dr. Shofner”) were married in July 1991. Both Dr. Kalisz and Dr. Shofner are physicians. Dr. Shofner is a practicing ophthalmologist, and Dr. Kalitz is an internist. They had three children during their marriage — Robert born in 1992, Alyssa born in 1994, and Andrew born in 1996. Dr. Kalisz stopped practicing medicine after Alyssa was born to devote her full-time attention to the parties’ children.

All was not well in the Shofner-Kahsz family despite the advantages that accompany professional educations and financial success. The marriage was fraught with marital conflict, as well as physical and emotional abuse. Dr. Kalisz insists that Dr. Shofner had difficulty managing his anger, that he physically and mentally abused her and Robert, and that he was, at times, rough with the younger children. She also asserts that Dr. Shofner had a serious gambling addiction. Dr. Shofner admits to acting inappropriately with Dr. Kalisz and Robert but disagrees with the characterization that his conduct was abuse. Drs. Kalisz and Shofner also had diametrically opposite views with regard to disciplining their children. Dr. Shofner favored physical punishment, while Dr. Kalisz; favored rewarding good behavior and taking away privileges for bad behavior.

Dr. Shofner insists that much of the family discord stemmed from Robert’s physical abuse of Alyssa and Dr. Kalisz’s consistent refusal to discipline Robert when he misbehaved or to protect Alyssa from Robert. Robert has a history of inflicting severe physical abuse on Alyssa, including hitting her, pushing her down stairs, and at one point, knocking her over, causing her to break her arm. Despite Robert’s behavioral problems at school and in other social settings, Dr. Kalisz reacted defensively and angrily when the children’s teachers, physicians, relatives, and Mends tried to offer her advice or criticism about her parenting. She eventually developed strained relations with most of the family’s support group. At the slightest hint of disapproval or concern, Dr. Kalisz moved the children from one school to another or withdrew them from various activities. She also refused to follow school rules, and she caused the children, especially Alyssa, to be excessively absent from school.

In other circumstances, conduct of the sort occurring in the Shofner-Kalisz home would have prompted intervention by the Tennessee Department of Children’s Services to protect the children. It may very well have been the parents’ socioeconomic status that enabled them to avoid a referral and thereby permitted the domestic dysfunction to continue for far too long. Finally, in April 2001, after ten years of confrontation, abuse, and discord, Dr. Shofner filed suit in the Circuit Court for Davidson County seeking a divorce on the grounds of irreconcilable differences and inappropriate marital conduct. He also sought to be designated as the children’s primary residential parent. Dr. Kalisz responded with a counterclaim for divorce and also sought to be designated the children’s primary residential parent.

At first, Dr. Kalisz, Dr. Shofner, and their children continued to reside in the marital home. During this time, the trial court required Dr. Shofner to pay child support and spousal support to Dr. Kalisz. In November 2001, after the living arrangements proved unworkable, the trial court ordered Dr. Shofner to leave the marital home pending a final hearing. The trial court granted Dr. Shofner liberal visitation and ordered him to be responsible for taking Alyssa and Andrew to school each morning. The court also ordered Dr. Kalisz to take Robert to school each morning and to pick up all three children from school in the afternoon.

The trial court conducted four days of custody hearings between July and August 2002. These hearings provided both Dr. Kalisz and Dr. Shofner with an opportunity to complain about the difficulties they had experienced with the temporary custody arrangement and to inveigh against each other’s parental shortcomings during the marriage. Dr. Kalisz described how Dr. Shofner had neglected the children when she was absent and insisted that he lacked the knowledge, ability, or inclination to care for the children. She testified in graphic detail about the injuries she and Robert received at Dr. Shofner’s hands.

In his own defense, Dr. Shofner conceded that he had previously relied too heavily on physical punishment and that he had been unable to care for the children on his own. He also stated that he had heeded the recommendations and advice of the children’s teachers and physicians and that he now believed that physical punishment was not an appropriate way to discipline children. He also testified that he had hired a nanny to assist him with the children. While Dr. Shofner exhibited genuine concern for the children’s welfare and a desire to improve his parenting skills, he was extremely critical of Dr. Kalisz’s adamant refusal to accept any help or advice from the children’s teachers, physicians, and others interested in the children’s welfare. He described numerous instances of Dr. Kalisz’s disagreeing with practically everyone involved with the children’s lives.

The trial court also received the testimony of Dr. Elmer Ray Potts, a psychologist who had been appointed by the court to evaluate both the parents and the children. Dr. Potts had interviewed and evaluated all members of the family and had prepared detailed reports regarding each member. Dr. Potts concluded that both Dr. Kalisz and Dr. Shofner were extremely defensive and overly cautious about their own faults and that both parents always believe that they are right. He credited Dr. Shofner with admitting that he needed outside help and support. Dr. Potts also diagnosed both Dr. Kalisz and Dr. Shofner with personality disorders. He concluded that while these disorders did not necessarily mean that they did not possess adequate parenting skills, they played a large role in the dysfunctional family relationships. Dr. Potts also detailed the negative effects that Dr. Shofner’s and Dr. Kalisz’s dysfunctional relationship has had on their children and strongly recommended that all the children receive counseling.

On September 19, 2002, the trial court filed a 16-page memorandum opinion and an order limited to the custody of the children. The court relied heavily on Dr. Potts’s reports and testimony. The court determined that the children had been trained to be dysfunctional by living with Drs. Shofner and Kalisz and that it could possibly be dangerous to require the children to continue to live together in light of the evidence of Robert’s abuse of Alyssa. Accordingly, the court concluded that the children should be separated. Based on its understanding of the children’s preferences, the trial court determined that Dr. Kalisz would be Robert’s primary residential parent and that Dr. Shofner would be Alyssa’s and Andrew’s primary residential parent. It prepared a detailed parenting plan for this arrangement that included visitation for both parents. The court also ordered Dr. Shofner to continue to pay spousal support and child support for Robert. Finally, the court determined that “[t]his arrangement will be reviewed in May 2003.”

Following the entry of the trial court’s memorandum opinion and order, Dr. Kal-isz filed several post-trial motions, including an amended Tenn. R. Civ. P. 59.04 motion. However, before the trial court could address these motions, Dr. Kalisz moved to disqualify the trial judge based on derogatory characterizations of her appearing in the judge’s personal notes, which had been placed inadvertently in the official case file. Following a hearing in November 2002, the trial judge declined to recuse herself but granted Dr. Kalisz permission to file a Tenn. R.App. P. 9 application for an interlocutory appeal with this court. On December 3, 2002, this court granted the interlocutory appeal, reversed the trial judge’s denial of the recusal motion, and remanded the case with directions that it be reassigned to another trial judge. On remand, the original trial judge recused herself and was replaced by a successor trial judge.

In February 2003, Dr. Kalisz filed a motion to vacate the September 19, 2002 memorandum order and opinion regarding custody and to grant her custody of the children pending a final hearing. On March 11, 2003, the successor trial judge denied the motion because the original trial judge had already addressed the issues regarding child custody and support. Several weeks later, Dr. Kalisz’s attorneys withdrew and were replaced by a lawyer practicing in Memphis. In April 2003, Dr. Kalisz requested the trial court to set a hearing to review the parenting plan established by the September 19, 2002 memorandum opinion and order.

On June 10, 2003, the successor trial judge addressed all the remaining issues in the divorce case, including Dr. Kalisz’s motion to review the existing parenting plan. She declared the parties divorced pursuant to Tenn.Code.Ann. § 36-4-129(b) based on their written stipulation that they had both engaged in inappropriate marital conduct, In addition, she approved the parties’ marital dissolution agreement that resolved all the financial issues. However, the successor trial judge refused to consider Dr. Kalisz’s Tenn. R. Civ. P. 59.04 motion or her motion to review the parenting plan because the September 19, 2002 order was not her order. She also refused to permit Dr. Kalisz to make an offer of proof with regard to her motion to review the parenting plan. The trial court entered a final decree immediately following the hearing.

Dr. Kalisz perfected an appeal to this court. The appeal did not, however, bring a respite to the parties’ legal skirmishes. Their internecine warfare continued in other forums. While the appeal was pending, Dr. Shofner requested the trial court to order Dr. Kalisz to pay child support and to restrain her from interfering with his parenting. Dr. Kalisz responded by requesting the trial court to modify the parenting plan that was the subject of this appeal. Following a hearing, the trial court ordered Dr. Kalisz to pay child support for Alyssa and Andrew and restrained her from interfering with Dr. Shofner’s parenting efforts. The court also denied Dr. Kalisz’s motion to modify the parenting plan on the ground that no material change in the parties’ or the children’s circumstances had occurred.

Thereafter, Dr. Kalisz filed a verified petition in the Davidson County Juvenile Court seeking to have Alyssa and Andrew declared dependent and neglected children. Both a referee and the juvenile judge dismissed Dr. Kalisz’s petition because it dealt with the “same issues ... [that] are presently part of pending litigation in another Court.” Dr. Kalisz appealed the denial of her petition to the circuit court. When the case was assigned to the successor trial judge, Dr. Kalisz requested the trial judge to recuse herself. After the successor trial judge declined to step aside, Dr. Kalisz voluntarily dismissed her appeal from the juvenile court’s decision.

II.

The Successor Trial Judge’s Compliance with Tenn. R. Civ. P. 63

We turn first to Dr. Kalisz’s argument that the successor trial judge erred by failing to comply with Tenn. R. Civ. P. 63 when the case was assigned to her following the recusal of the original trial judge. Dr. Shofner defends the successor trial judge by arguing that her oversight should be excused because Dr. Kalisz did not ask her to comply with Tenn. R. Civ. P. 63. Dr. Kalisz has the better argument. Trial courts have a duty to comply with Tenn. R. Civ. P. 63 when the circumstances require, and the successor trial judge erred by failing to discharge her duty.

A.

Tenn. R. Civ. P. 63 governs situations when a case must be assigned to another judge because the judge originally presiding over the case is unable to proceed. The rule provides:

If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a trial or hearing without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. In any trial or hearing, with or without a jury, the successor judge may recall any witness.

Tennessee’s courts have not had many occasions to construe Tenn. R. Civ. P. 63. However, its language is essentially identical to that of Fed.R.Civ.P. 63. Accordingly, the decisions of the federal courts construing Fed.R.Civ.P. 63 can provide helpful guidance in interpreting our own rule. See Frazier v. East Tenn. Baptist Hosp., 55 S.W.3d 925, 929 (Tenn.2001); Harris v. Chern, 33 S.W.3d 741, 745 n. 2 (Tenn.2000); Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 n. 7 (Tenn.Ct.App.1995).

Both the state and the federal versions of Rule 63 apply to situations in which a trial judge is, for some reason, unable to proceed in a case. These situations include disqualification or recusal. The newly assigned judge must either certify familiarity with the record and determine that the proceedings may continue without prejudice to the parties or grant a new trial. The successor judge may not proceed in a case without making the requisite certifications. As the 1991 Advisory Committee Note to Fed.R.Civ.P. 63 states:

To avoid the injustice that may result if the substitute judge proceeds despite unfamiliarity with the action, the new Rule provides, in language similar to Federal Rule of Criminal Procedure 25(a), that the successor judge must certify familiarity with the record and determine that the case may be completed before that judge without prejudice to the parties.

The advisory committee’s note further states that the successor judge’s certification is an “efficient mechanism” to prevent the unnecessary expense and delay of a second trial. A successor judge need only certify familiarity with those portions of the record that relate to issues before the judge. Canseco v. United States, 97 F.3d 1224, 1227 (9th Cir.1996). As long as the successor judge certifies familiarity with the record and determines that continuing the proceedings may be accomplished without prejudice to the parties, the judge may carry on the duties of the original judge with wide-ranging power and with the same discretion as the original judge.

B.

This record contains no indication that the successor trial judge ever certified her familiarity with the record of the proceedings that had occurred before the original trial judge. Dr. Shofner seeks to excuse this oversight by arguing that Dr. Kalisz waived her right to insist on compliance with Tenn. R. Civ. P. 63 because she failed to request the • trial court to make the required certification. This argument overlooks the fact that there is no room for discretion regarding compliance with Tenn. R. Civ. P. 63. The plain language of the rule demonstrates that it applies to all cases in which a successor trial judge replaces a trial judge who is unable to proceed. Accordingly, the successor trial judge had a duty to comply with Tenn. R. Civ. P. 63 whether requested to do so or not. It necessarily follows that she erred by presiding over the case without either ordering a retrial or certifying that she was familiar with the record of the prior proceeding and that continuing the proceeding without a retrial would not prejudice the parties.

III.

The SuccessoR Trial Judge’s Refusal to Consider the Custody Issue

Dr. Kalisz also takes issue with the trial court’s categorical refusal to revisit the 2002 parenting plan because it had been devised by the original trial judge. She argues that the successor trial judge erred by (1) considering the original trial judge’s September 19, 2002 order to be beyond review or reconsideration, (2) refusing to rule on the Tenn. R. Civ. P. 59.04 motion she had filed before the original trial judge recused herself, and (3) refusing to permit her to make an offer of proof at the June 10, 2003 hearing regarding the current status of the children. Again, we agree with Dr. Kalisz on all points.

A.

The successor trial judge decided that she would not consider or review the original trial judge’s September 19, 2002 parenting plan because it was “final.” Dr. Kalisz takes issue with the successor trial judge’s characterization because the original trial judge had stated that she would review the parenting plan again in May 2003. Dr. Shofner responds that reserving the right to review the parenting plan does not undermine the plan’s finality. While Dr. Shofner is correct, both parties’ focus on the legal significance of the original trial judge’s intention to revisit the parenting plan misses the point. The September 19, 2002 order was not final for two simple reasons. First, it did not resolve all the claims between all the parties. Second, the original trial judge did not certify it as final in accordance with Tenn. R. Civ. P. 54.02.

A final judgment is primarily one that fully adjudicates all the claims between all the parties. Tenn. R.App. P. 3(a); Aetna Cas. & Sur. Co. v. Miller, 491 S.W.2d 85, 86 (Tenn.1973); Wilson v. Wilson, 58 S.W.3d 718, 725 (Tenn.Ct.App.2001); Gaskill v. Gaskill, 936 S.W.2d 626, 630 n. 4 (Tenn.Ct.App.1996). It leaves nothing else for the trial court to resolve. In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn.2003); Vineyard v. Vineyard, 26 Tenn.App. 232, 241, 170 S.W.2d 917, 920 (1942). Until a judgment becomes final, it remains within the trial court’s control and may be modified any time prior to the entry of a final judgment. Stidham v. Fickle Heirs, 643 S.W.2d 324, 328 (Tenn.1982); Eldridge v. Eldridge, 137 S.W.3d 1, 20 n. 10 (Tenn.Ct.App.2002); Hall v. Bookout, 87 S.W.3d 80, 85 (Tenn.Ct.App.2002).

A judgment that does not resolve all the claims between all the parties may nevertheless be considered a final judgment if the trial court certifies it as final in accordance with Tenn. R. Civ. P. 54.02. A judgment that completely resolves one of multiple claims or that completely resolves all the claims against one of multiple parties is eligible for certification under Tenn. R. Civ. P. 54.02. Bayherry Assocs. v. Jones, 783 S.W.2d 553, 558 (Tenn.1990); Town of Collierville v. Norfolk Southern Ry., 1 S.W.3d 68, 70 (Tenn.Ct.App.1998). However, finality arises only when the trial court has expressly directed the entry of a final judgment because no just reason for delaying the entry of a final judgment exists.

The September 19, 2002 memorandum opinion and order clearly did not resolve all the disputed matters in the pending divorce litigation. By their own terms, they dealt with only one matter — custody of the children. Accordingly, the order can be deemed final only if it contains the express determination required by Tenn. R. Civ. P. 54.02 that there is no just reason for delaying the entry of a final judgment regarding the custody issue. The order does not contain such a determination. Therefore, despite the successor trial judge’s apparent distaste for addressing an issue already addressed by the original trial judge, the September 19, 2002 order is not final. In the words of Tenn. R. Civ. P. 54.02, it remained “subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.”

Both parties’ briefs contain lengthy discussions regarding the significance of the portion of the September 19, 2002 memorandum opinion stating that the trial court intended to revisit the parenting plan in May 2003. Dr. Kalisz asserts that this language means that the parenting plan was not “final.” Dr. Shofner takes the contrary position. On two occasions, this court has determined that a statement in a divorce decree reflecting the court’s intention to review the custody arrangement at a later date does not undermine the finality of the decree. These opinions have no relevance to this case because they involved divorce decrees that disposed of all the claims between all the parties. The September 19, 2002 order did not; it addressed only the custody issue.

B.

Dr. Kalisz also takes issue with the successor trial judge’s refusal to consider the amended Tenn. R. Civ. P. 59.04 motion that was filed before the original trial judge recused herself. She insists that the successor trial judge stepped into the shoes of the original trial judge and was required to consider any motions the original judge would have been required to consider. We agree.

While trial courts enjoy wide discretion to grant or deny Tenn. R. Civ. P. 59 motions, Ali v. Fisher, 145 S.W.3d 557, 564-65 (Tenn.2004), they cannot refuse to exercise that discretion. Thus, because Tenn. R. Civ. P. 63 requires the successor trial judge to step into the shoes of the original trial judge, the successor trial judge must consider and resolve any post-trial motions that the original trial judge would have been required to consider. Rogers Group, Inc. v. Anderson County, 113 S.W.3d 725, 727 (Tenn.Ct.App.2003). As one court construing Fed.R.Civ.P. 63 has observed, “[i]t would be unfair to ‘deny a litigant’s right to try to persuade the court that it has erred simply because the judge who rendered the original decision is unavailable and cannot be called on to reconsider the matter.’ ” Mergentime Corp. v. Washington Metro. Area Transit Auth., 166 F.3d 1257, 1263 (D.C.Cir.1999) (quoting 12 MooRe’s FedeRal PRACTICE § 63.05[1]).

The decisions construing Tenn. R. Civ. P. 63 and its federal counterpart make it clear that if a successor trial judge decides to permit a legal proceeding to continue, the judge must consider and dispose of any post-trial motions made either before or during the successor judge’s involvement in the case. If the successor judge is satisfied that he or she cannot perform the duties imposed by the procedural rules with respect to the particular case, the successor judge is empowered to and must order a new trial. See 12 Moore’s Federal Practioe § 63.05. When the successor trial judge in this case decided that a new trial would not be necessary, she assumed the original trial judge’s obligation to consider Dr. Kalisz’s outstanding Tenn. R. Civ. P. 59.04 motion and erred when she refused to consider it.

C.

The final procedural issue raised by Dr. Kalisz involves the successor trial judge’s refusal to permit her to make an offer of proof at the June 10, 2003 trial regarding the current circumstances of the children. Dr. Shofner does not undertake to defend the successor trial judge’s action-with good reason. The trial court committed clear error by preventing Dr. Kalisz from making an offer of proof regarding the children’s circumstances in June 2003.

As a matter of law, the custody arrangements for the parties’ three children remained an open question at the June 10, 2003 hearing. Because the custody decision was not yet final and nine months had elapsed since the entry of the initial custody order, any evidence regarding the children’s current circumstances was relevant, and the successor trial judge should have permitted either Dr. Kalisz or Dr. Shofner to present any evidence they had regarding this matter. Even after it decided not to hear any evidence regarding the custody issue, the trial court should have permitted the parties to make an offer of proof. Tenn. R. Evid. 103(a)(2); Alley v. State, 882 S.W.2d 810, 815 (Tenn.Crim.App.1994).

A trial court’s decision to exclude evidence is not prejudicial unless it affects a party’s substantial rights. See Tenn. R. Evid. 103(a). The exclusion of evidence regarding the custody of minor children when the matter of custody is not finally resolved and the custody arrangement is still subject to revision affects not only the rights of the parents but also the interests of the children. Children of divorcing and divorced parents are entitled to protection by the courts, and the courts must look out for their interests. Courts cannot effectively discharge their obligation to look out for the interests of children of divorcing parents when they arbitrarily decline to consider the children’s present circumstances before fashioning a final custody arrangement.

The successor trial judge’s refusal to permit a timely offer of proof also undermines this court’s ability to determine not only whether the trial court properly excluded the evidence but also whether the parenting plan is in the children’s best interests. By inviting Dr. Kalisz to raise the issue with the denial of her offer of proof on appeal, the successor trial judge has effectively forced us to travel to an unknown destination without a map. Despite the voluminous record in this case, it is not possible for us to ascertain the status of the children at the time of the June 2003 hearing. The successor trial judge erred when she refused Dr. Kalisz’s request to make an offer of proof.

IV.

The Existing Custody ARRangement

The principal substantive issue in this case is the propriety of the custody arrangement that has been in place for over two years. Dr. Kalisz asserts that the portion of the September 19, 2002 order placing Alyssa and Andrew in Dr. Shofner’s custody is not in their best interests because Dr. Shofner is unfit to be the children’s primary custodial parent. Having carefully reviewed the voluminous record, we determined that it does not contain sufficient evidence to warrant overturning the existing custody arrangement.

We note at the outset of our discussion of this issue that the successor trial judge’s procedural errors discussed in Section III of this opinion have effectively placed important and relevant evidence beyond our reach. At the time of the final hearing in this case in June 2003, the custody arrangement at issue on this appeal had been in place for approximately nine months. As a result of the successor trial judge’s refusal to permit Dr. Kalisz to make an offer of proof, this record contains no evidence regarding the effect the custody arrangement had had on the children up to that point. It would serve no practical purpose to remand the case to supply the evidence that should have been introduced in June 2003. That evidence is now dated, and the parties would be hard-pressed to present it. Despite our knowledge that much has transpired during the past two years, we have determined that the most appropriate course is to review the propriety of the existing custody arrangement in light of the record as it has been provided to us.

A.

Creating a parenting plan is one of the most important decisions confronting a trial court in a divorce case. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn.Ct.App.2001). Courts must strive to devise parenting plans that promote the development of the children’s relationship with both parents and interfere as little as possible with post-divorce family decision-making. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn.1996); Taylor v. Taylor, 849 S.W.2d 319, 331-32 (Tenn.1993). The needs of the children are paramount; the desires of the parents are secondary. Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn.1986). Parenting plans should never be used to punish or reward the parents for their human frailties or past mis-steps, Earls v. Earls, 42 S.W.3d 877, 885 (Tenn.Ct.App.2000); Turner v. Turner, 919 S.W.2d 340, 346 (Tenn.Ct.App.1995); Long v. Long, 488 S.W.2d 729, 733 (Tenn.Ct.App.1972), but rather they should be used to advance the children’s best interests by placing them in an environment that best serves their physical and emotional needs. Luke v. Luke, 651 S.W.2d 219, 221 (Tenn.1983).

There are no hard and fast rules for devising a parenting plan. See Taylor v. Taylor, 849 S.W.2d at 327; Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn.Ct.App.1983). The process is factually driven and requires the courts to carefully weigh numerous considerations. Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn.1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn.1988). The Tennessee General Assembly and the courts have identified many of the factors that trial courts should consider. Tenn.Code Ann. § 36-6-106(a) (2001); Tenn.Code Ann. § 36-6-404(b) (Supp. 2004); Tenn.Code Ann. § 36-6-406(d) (2001); Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.Ct.App.1983).

Trial courts have broad discretion to fashion parenting plans that best serve the interests of the children. Tenn. Code Ann. § 36-6-101(a)(2)(A) (Supp. 2004). They must, however, base their decisions on the evidence presented to them and upon the proper application of the relevant principles of law. D v. K, 917 S.W.2d 682, 685 (Tenn.Ct.App.1995). While we are reluctant to second-guess a trial court’s decisions regarding a parenting plan, see Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.Ct.App.1997), we will not hesitate to do so if we conclude that the trial court’s decision is not supported by the evidence, that the trial court’s decision rests on an error of law, or that the child’s interests will be best served by another parenting arrangement. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001); Steen v. Steen, 61 S.W.3d at 328; Placencia v. Placencia, 3 S.W.3d 497, 499 (Tenn.Ct.App.1999).

B.

Dr. Kalisz first asserts that she is comparatively more fit than Dr. Shofner to be the primary residential parent for all three children. She compares her self-described accomplishments as a parent with Dr. Shofner’s inappropriate conduct during the marriage. Dr. Shofner reciprocates by emphasizing the efforts he has made to be a better parent along with Dr. Kalisz’s own inappropriate behavior and resistance to change.

As we have reviewed the record in this case, we have kept in mind that these parents, like all parents, have their own strengths and weaknesses. Gaskill v. Gaskill, 936 S.W.2d at 630. It would be unrealistic to measure them against the standard of perfection because, in reality, this standard is unattainable. Earls v. Earls, 42 S.W.3d at 885; Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn.Ct.App.1998). The evidence in this case underscores the shortcomings of both parents. They have not always used proper judgment, and they have frequently failed to act in the best interests of their children. In fact, no conclusion can be drawn from the evidence other than that Dr. Shofner’s and Dr. Kal-itz’s inabilities to maintain a civil relationship with each other has severely disrupted their children’s lives and has affected their children in ways that may not be fully realized for many years.

The record clearly shows that the children are Dr. Kalisz’s first priority. She is motivated by a commendable desire to nurture and protect her children from the vagaries of the world. Yet, paradoxically, Dr. Kalisz has been unwilling or unable to realize that many of her parenting strategies have proved to be ineffective and actually detrimental to her children. She has reacted defensively and hostilely to the advice and suggestions of persons who are concerned about the children’s welfare, including their teachers, physicians, and family members. Her inability to appreciate how her conduct has affected the parties’ children is troubling.

Dr. Shofner also has many shortcomings. Some of his conduct during the marriage is inexcusable, and his parenting strategies, especially his early penchant for physical discipline, havé proved to be ineffective and counterproductive. However, unlike Dr. Kalisz, Dr. Shofner has admitted his shortcomings and has been actively seeking outside assistance to improve his parenting skills and to assist him with his parenting responsibilities. He has hired a nanny; he has received parenting skill training; and he has elicited and followed the advice from the children’s teachers and physicians.

We have compared the fitness of both Dr. Kalisz and Dr. Shofner to parent their children based on the evidence in the record. While we find troubling drawbacks with both parents, we have not found evidence indicating that either parent is unfit to be a primarily residential parent or that Dr. Kalisz is comparatively more fit than Dr. Shofner to be Alyssa’s and Andrew’s primary residential parent. In fact, the record shows that Dr. Shofner has demonstrated a genuine desire to be a better parent, while Dr. Kalisz has refused to recognize her own shortcomings or the effects that these shortcomings have had on all her children. Accordingly, we have concluded that the evidence does not support Dr. Kalisz’s claim that she is comparatively more fit than Dr. Shofner to be Alyssa’s and Andrew’s primary residential parent.

C.

Dr. Kalisz also insists that the September 19, 2002 order must be set aside because it requires that Robert be separated from Alyssa and Andrew. She asserts that separating siblings is inherently harmful and that the children’s interests would be best served by allowing them to live together with her. While we agree that siblings should ordinarily not be separated, this case is one of the relatively rare exceptions to that rule.

Separating siblings is a drastic remedy. While there is a presumption against separating siblings, Ray v. Ray, 88 S.W.3d 726, 738 (Tenn.Ct.App.2001); Baggett v. Baggett, 512 S.W.2d 292, 293-94 (Tenn.Ct.App.1973), this presumption is rebuttable and must give way to other considerations in appropriate circumstances. Rice v. Rice, 983 S.W.2d at 684. The facts in a particular case may require that siblings be separated. Ray v. Ray, 83 S.W.3d at 726; In re S.B., No. M1999-00140-COA-R3-CV, 2000 WL 575934, at *5 (Tenn.Ct.App. May 12, 2000) (No Tenn. R.App. P. 11 application filed); Mills v. Mills, No. 02A01-9711-CV-00295, 1998 WL 802011, at *4 (Tenn.Ct.App. Nov.18, 1998) (No Tenn. R.App. P. 11 application filed).

The record contains troubling information regarding Robert’s aggressive conduct and Dr. Kalisz’s inability or disinclination to control it. Robert has committed a series of violent acts on Alyssa. He has struck her on many occasions; he has pushed her down two separate staircases at their grandmother’s house; and he caused her to break her arm. No court in good conscience could permit Robert and Alyssa to live together under these facts in the absence of a cohesive plan to address Robert’s aggressiveness and to prevent future abuse of his sister. No such plan is evident in this record. Dr. Kalisz prefers to allow the children to work out their problems, while Dr. Shofner advocates punishing Robert for his behavior. Until Dr. Shofner and Dr. Kalisz can agree to participate in a plan that protects Alyssa and assures that Robert can control his aggressive conduct, it is in both Robert’s and Alyssa’s best interests that they live in separate households.

Robert is clearly dependent on Dr. Kal-isz and has expressed his preference to live with her rather than with Dr. Shofner. This desire is understandable in light of the manner in which Dr. Shofner has physically disciplined Robert in the past and the resulting deterioration of their relationship. Accordingly, the evidence supports designating Dr. Kalisz as Robert’s primary residential parent and Dr. Shof-ner as Alyssa’s primary residential parent.

According to Dr. Potts, Andrew, the parties’ youngest child, is the “best survivor of this dysfunctional group.” Although he is only eight years old, Andrew has expressed a preference to live with Dr. Shofner. It was appropriate for the trial court to consider Andrew’s preference along with the other factors relevant to devising a parenting plan. Tenn.Code Ann. § 36-6-106(a)(7) (2001); Helson v. Cyrus, 989 S.W.2d 704, 707 (Tenn.Ct.App.1998). The record contains no evidence that Dr. Shofner has abused Andrew. At the same time, the record contains evidence that Andrew has a close relationship with Alyssa. In light of these facts, we decline to second-guess the decision to permit Andrew to live with Alyssa and to designate Dr. Shofner has his primary residential parent.

When courts are required to separate siblings, they should minimize the potentially harmful effects of this separation by including liberal visitation rights and other provisions enabling and encouraging the siblings to continue their relationship with each other. Ray v. Ray, 83 S.W.3d at 738; Rice v. Rice, 988 S.W.2d at 685. The parenting plan contained in the September 19, 2002 order allows for the children to spend every weekend together and grants both Dr. Kalisz and Dr. Shofner liberal visitation rights. Taking into consideration the overriding need to protect Alyssa from Robert until he demonstrates that he is better able to control his aggression, the parenting plan accomplishes the goal of enabling the siblings to maintain their relationship with each other as much as the circumstances will permit.

D.

The fact that the parenting plan at issue in this case has been in place since September 2002 has influenced our analysis of the issues in this case. Children have the best opportunity to thrive when they live in stable environments. Tenn.Code Ann. § 36-6-401(a) (2001); Aaby v. Strange, 924 S.W.2d at 627; Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 511451, at *4-5 (Tenn.Ct.App. July 21, 1999) (No Tenn. R.App. P. 11 application filed); National Interdisciplinary Colloquium on Child Custody, Legal and Mental Health Perspectives on Child Custody Law: A Deskbook for Judges § 5:1, at 51 (1998). As a result of the current parenting plan, the children caught up in the dispute between Drs. Shofner and Kalisz have at least had some measure of stability.

Our decision in this case is a narrow one. We have not decided that some other parenting plan would not have been more appropriate in 2003 had the trial court considered additional evidence regarding the children’s circumstances at that time. Nor have we foreclosed the possibility of altering the current parenting plan should either party present evidence of a material change in circumstance warranting an alteration. We have determined only that the present record does not support Dr. Kalisz’s assertion that the 2002 parenting plan is not in the best interests of the parties’ children.

V.

Dr. Shofner’s Claim for Attorney’s Fees

Dr. Shofner has requested that this court award him a judgment against Dr. Kalisz for the legal fees and costs he has incurred on this appeal. Tenn.Code Ann. § 36-5-103(c) (Supp.2004) vests in this court the discretionary authority to award these fees and costs in proper cases. See Holt v. Holt, 995 S.W.2d 68, 78 (Tenn.1999); Archer v. Archer, 907 S.W.2d 412, 419 (Tenn.Ct.App.1995). In determining whether an award for attorney’s fees is warranted, we should consider, among other factors, the ability of the requesting party to pay his or her own attorney’s fees, the requesting party’s success on appeal, and whether the requesting party has been acting in good faith. Parchman v. Parchman, No. W2003-01204-COA-R3-CV, 2004 WL 2609198, at *6 (Tenn.Ct.App. Nov.17, 2004).

While Dr. Kalisz’s decision to seek relief in many different courts simultaneously gives us some pause, we decline to find on the facts before us that she has been pursuing this appeal in bad faith. We have agreed with her contentions that the trial court committed several serious procedural errors, and while we have determined that her efforts to set aside the parenting plan in the September 19, 2002 order fall short of the mark, we cannot conclude that her arguments lack no factual or legal support. Accordingly, we deny Dr. Shofner’s request that Dr. Kalisz be ordered to pay his appellate legal expenses.

VI.

We affirm the portion of the June 10, 2003 order making the parenting plan in the September 19, 2002 order permanent and remand the case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal in equal proportions to the parties and their sureties for which execution, if necessary, may issue.

ORDER DENYING PETITION FOR REHEARING

Ann Margaret Kalisz has filed a timely petition requesting a rehearing with regard to our December 23, 2004 opinion affirming the final judgment of the Circuit Court for Davidson County regarding the custody of the parties’ three children. Dr. Kalisz asserts that we have “shown undue deference to the findings and opinions of a trial judge who appeared to be biased.” Accordingly, she insists that we should remand the case for a final permanent custody hearing and that, pending this hearing, we should reinstate the custody arrangements established by the original trial judge’s November 9, 2001 order, as well as the spousal and child support arrangements in the June 18, 2001 order.

Contrary to Dr. Kalisz’s assumptions, her petition for rehearing raises no new issue or matter that we have not already thoroughly and carefully considered. As we stated in our December 23, 2004 opinion, our decision to affirm the custody arrangements finalized by the June 10, 2003 order is based on (1) our own independent review and analysis of the untainted evidence in the record, free from any of the perceived biases of the original trial judge and (2) our conclusion that even in light of the procedural errors that have been committed, sending this long-simmering custody dispute back to square one will have an adverse effect on whatever stability the parties’ children have been able to attain since September 2002.

Our December 23, 2004 opinion is intended to conclude, once and for all, the direct appellate review of the propriety of the custody arrangement that has been in place for over two years. As we pointed out in our opinion, Dr. Kalisz is not foreclosed from filing and pursuing a petition to change custody which, if successful, could result in a modification of the custody arrangement which we have affirmed. She has, in fact, already filed such a petition, and her appeal from the trial court’s denial of that petition has already been filed with this court. That appeal will provide Dr. Kalisz with an opportunity to demonstrate to this court how the intervening changes in the circumstances of the parties and their children warrant reopening the existing custody order that we have affirmed. Embarking on a re-examination of the merits of the September 2002 custody order will confuse, rather than clarify, the issues that are now before the courts.

It is, therefore, ordered that the petition for rehearing be and is hereby denied. The costs of this petition for rehearing are taxed to Ann Margaret Kalisz for which execution, if necessary, may issue.

      . The record indicates that at one time, Dr. Shofner lost over $400,000. Dr. Shofner admitted his addiction and has sought professional help to address it.

      . Dr. Kalisz asserted, for example, that Dr. Shofner "kicked” her in anger. Dr. Shofner characterized this conduct thusly: "I gave her a pat with my foot on her derriere.... fljt wasn’t a kick. A kick to me is what you do to a football fifty yards.”

      . Recounting in detail all the evidence regarding the parties' conduct both before and after their separation serves no useful purpose. We have included in this opinion only those specific incidents necessary to illustrate or support our reasoning.

      .This testimony did not reflect well on either parent. Dr. Shofner, for example, complained that Dr. Kalisz frequently would not have the two younger children ready for school when he arrived in the morning. For her part, Dr. Kalisz complained that Dr. Shof-ner would ring the door bell incessantly while waiting for her to, get the children ready for school.

      . No useful purpose would be served by recounting the details of Dr. Potts’s evaluations in this opinion.

      . The court deferred ruling on the other issues in the case until a later date.

      . The trial court directed Dr. Kalisz to "spend at least 10 hours per week in either part-time employment, education or significant volunteer activity” because she was now. only responsible for Robert. The court also expressed its hope "that she [Dr. Kalisz] will eventually retain at least part-time employment or full-time employment in her chosen profession. That will be discussed at a later hearing or at the review hearing in May 2003.”

      .The order reflects that this arrangement was by no means the final word with regard to custody. The trial court observed:
      If the court sees progress in both of these parents as learning good parenting skills, the court will readily consider, whether the economy of the family is better served by the three children being together with’Ms. Dr. Shofner or continuing to live separately. By the same token, if Ms. Dr. Shofner and Robert do not do well together, the court may consider placing all three children with Dr. Shofner or some alternative plan.

      . We based this decision on our conclusions that the trial judge’s characterization of Dr. Kalisz created an appearance of bias and that nothing could erase the parties’ perception of bias created by the content of the trial judge’s notes that had been inadvertently revealed to them. Shofner v. Shofner, No. M2002-02803-COA-R9-CV (Tenn.Ct.App. Dec. 3, 2002).

      . Apparently, the successor trial judge had an ex parte communication with'Dr. Kalisz’s lawyer’s paralegal prior to the hearing in which she stated that she would not allow Dr. Kalisz’s lawyer to proceed with this motion. According to the transcript of the June 10, 2003 hearing, the successor trial judge and Dr. Kalisz's lawyer had the following exchange:
      MS. POUNDERS: I had filed earlier a motion for review which was referenced in the memorandum of opinion of Judge Ship-ley, i.e., of review of the three children who are now ages 11, 9, and 6. And pursuant to my understanding, Your Honor contacted my office, spoke with my paralegal. You and I never had a conversation about it. I want the record to be clear about the status of this.
      THE COURT: Right.
      MS. POUNDERS: I then spoke to someone in your office and understood that Your Honor was not going to allow me to proceed on that motion.
      THE COURT: Right. We can do the motion today. But what my information was, was that I would not grant that motion, that since Judge Shipley recused herself, that was not my order, and I would not do the review. And so that’s most respectfully denied, if you’re making that motion to me today, and that can be part of the record.

      . Dr. Kalisz's lawyer requested "that there at least be an offer of proof from my client in regard to her understanding of the status of the children presently.” The trial court responded, "That’s most respectfully denied, but you can address that with the Court of Appeals:”

      . We granted Dr. Shofner's Tenn. R.App. P. 14 motion to include the information regarding the post-appeal proceedings in the trial court and the juvenile court. Dr. Kalisz also filed a Tenn. R.App. P. 14 motion requesting this court to consider other criminal proceedings she commenced against Dr. Shofner. We have denied this motion.

      . 12 James Wm. Moore et At., Moore’s Federal Practice § 63.04 (3d ed. 1998) ("Moore's Federal Practice”) ("To certify familiarity with the record, a successor judge must read and consider all relevant portions of the record.”).

      . 12 Moore’s Federal Practice § 63.04 ("Before succeeding a judge who is unable to proceed, a successor judge must certify familiarity with the record and determine that the proceedings may be completed before the successor judge without prejudice to the parties.”).

      . See 12 Moore's Federal Practice § 63.05; see also United States v. Diehl, 460 F.Supp. 1282 (S.D.Tex.1978).

      . Hoalcraft v. Smithson, 19 S.W.3d 822, 827-28 (Tenn.Ct.App.1999) (a trial court’s statement that it would place the custody arrangement on its "review docket” did not undermine the finality of the order); Dailey v. Dailey, No. 03A01-9409-CH-00340, 1995 WL 11179, at *3 (Tenn.Ct.App. Jan.12, 1995) (a trial court's characterization of a custody decision as "temporary” did not undermine the finality of the order).

      . See Smith v. Smith, 188 Tenn. 430, 437-38, 220 S.W.2d 627, 630 (1949); Rubin v. Kirshner, 948 S.W.2d 742, 747 (Tenn.Ct.App.1997); State ex rel. Norfleet v. Dobbs, No. 01A01-9805-CV-00228, 1999 WL 43260, at *4 (Tenn.Ct.App. Feb.1, 1999) (No Tenn. R.App. P. 11 application filed).

      . Parents do not have the right to importune the courts with constant updates regarding the minor details of a child’s day-to-day existence or with trivial complaints regarding the other parent. Accordingly, the courts may condition a parent's request to present evidence regarding a child’s circumstances on a prior showing of relevancy and purpose.


source: Caselaw Access Project

author: D. MICHAEL SWINEY, J„

license: Public Domain

text:
    Beatrice Harmon MONTGOMERY v. Terry Lane MONTGOMERY, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Dec. 6, 2004 Session.
    March 17, 2005.
    Rehearing Denied April 6, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 31, 2005.

      Thomas C. Jessee, Johnson City, TN, for the Appellant Terry Lane Montgomery.
    David S. Haynes, Bristol, Tennessee, for the Appellee Beatrice Harmon Montgomery.
    Mark D. Edmonds, Jonesborough, TN, for the Appellee Brian Montgomery.
   OPINION

D. MICHAEL SWINEY, J„

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., and SHARON G. LEE, JJ., joined.

While Beatrice Harmon Montgomery (“Plaintiff’) and Terry Lane Montgomery (“Defendant”) never married, they lived together for many years beginning in 1969. Plaintiff and Defendant had one child, Brian Montgomery. During their relationship, Plaintiff and Defendant accumulated substantial assets and operated several businesses. Plaintiff filed this lawsuit seeking dissolution of her implied business partnership with Defendant. Brian Montgomery intervened claiming he also was a partner in two of the business ventures. The Trial Court concluded that Plaintiff and Defendant were equal partners in all of their business pursuits, and that Brian also was a partner in two of them. It is this ruling that forms the basis for most of the numerous issues raised on appeal. We reverse in part, vacate in part, affirm in part as modified, and remand for further proceedings consistent with this Opinion.

Background

This appeal involves the complicated dissolution of what the Trial Court found to be an implied partnership between Plaintiff and Defendant, and at times also their only child, Brian Montgomery. Plaintiff and Defendant are fifty-five years of age. They began living together in 1969 and their son Brian was born in 1970. Although they never married, Plaintiff and Defendant continued to live together for approximately twenty-seven years after Brian was born. In May of 1999, Plaintiff filed this lawsuit seeking a divorce or, alternatively, dissolution of an implied partnership.

The pleadings in the record comprise five volumes and 745 pages. It took several days to complete the trial and the transcript alone is over 1200 pages, excluding the 341 exhibits marked for identification of which 124 were admitted at trial. Once the trial was completed, the Trial Court orally announced many of its initial findings which later were transcribed and incorporated into the Judgment entered in May of 2003. This Judgment did not resolve all of the issues and, in addition, several post-trial motions were filed. In January of 2004, the Trial Court resolved the remaining issues as well as the post-trial motions with the entry of a Final Judgment, which later was amended in February of that same year. The Final Judgment altered few, if any, of the findings in the initial Judgment and focused primarily on how the parties were to go about selling or auctioning some of their assets.

This case involves the break-up of a long-term relationship between Plaintiff and Defendant. During their relationship, the parties acquired substantial assets. For example, at the time of trial the parties owned and operated a masonry business, an insurance business, a marina, a mini-mall, and an apartment complex known as Eastland Apartments. The parties owned various other business ventures during their relationship such as two Nautilus gyms. The primary issues at trial involved who was entitled to what. Because Plaintiff and Defendant never were married, the statutes and relevant case law addressing distribution of marital property did not apply. Relying on applicable precedent from our Supreme Court, the Trial Court applied the law governing business partnerships when rendering its Judgment. In short, the Trial Court concluded that Plaintiff and Defendant were equal partners in all of their business ventures with the exception of the marina and some land located across the road from the marina. With regard to these two assets, i.e., the marina and the land, the Trial Court held that the parties’ son Brian was also a partner. It is this overall conclusion by the Trial Court which forms the basis for most of Defendant’s issues on appeal.

When the Trial Court announced its initial decision from the bench, it made certain credibility determinations and other findings which are important to the resolution of this appeal. Specifically, the Trial Court stated:

As in most domestic type cases, credibility in this case was a key issue. The Court found Mr. Montgomery to be evasive and apparently forgetful throughout his testimony. He violated two injunctions of the Court, one ... [prohibiting] the parties from disposing of any of their assets ... and the injunction on June 28, 1999 ... which said the parties were not to deny access to each other with respect to their various properties. Mr. Montgomery also illegally recorded Mrs. Montgomery’s telephone conversations and ... [he] filed what this Court found to be a spurious $1.6 million lien on the marina ....
Mrs. Montgomery, on the other hand, was generally more forthright and candid in her testimony even when it was at times to her disadvantage. Mr. Montgomery did stipulate and agree to a partial division of their property as follows: Mr. Montgomery was to receive the houseboat and its contents and the masonry business. Mrs. Montgomery was to receive the condominium and its contents with the debt on the condominium to be paid from the proceeds of the sale of the marina, and she was to receive her insurance business. [Counsel for Mr. Montgomery] agreed these were the stipulated understandings between the parties as to these properties, but he did not stipulate that they were partnership properties. The Court finds that they are partnership properties, and in that connection, this Court would include the one-acre lot in Milligan, which was ... used exclusively in the masonry business to be part of the masonry business.
The Court finds and holds that the parties did combine their labor and monies until at least September, 1999. Mr. Montgomery contends that he did more in the way of monies and sweat equity to the acquisition of their various properties and monies. Mrs. Montgomery ... contributed monies, and there were years earlier on in their relationship when she earned more money than Mr. Montgomery, and she also gave material assistance in the operation of both [of the Nautilus gyms ... and] the East-land Apartments, the masonry business where she did the record keeping and was active in the operation of the marina prior to September, 1999. Her involvement in the development of the Florida properties was not as great as in some
of the other businesses, but it was a part of the overall scheme of these parties or goal of these parties to acquire assets and make substantial income .... The Court finds clearly under the facts of this case that Mr. and Mrs. Montgomery, Terry and Bea Montgomery were partners and that they did combine their labor, efforts, monies in the acquisition ofpropeHies and money .... (emphasis added)

There is considerable disagreement between the parties on appeal as to the Trial Court’s conclusion as to when their business partnership actually began. The Trial Court stated in its Judgment that Plaintiff and Defendant “became equal partners in all of their business ventures beginning with the Masonry business in approximately 1981.” Plaintiff claims the year should have read “1971” and this was merely a typographical error in the Judgment. Relying on the year as set forth in the Judgment (i.e., 1981), Defendant claims the Trial Court erred when it concluded Plaintiff was an equal partner in the masonry business, the Eastland Apartments, the Milli-gan lot, and certain land located in Florida. Alternatively, Defendant argues that if the finding of a partnership was correct, then he is entitled to recoup his initial investment of $180,000 in the Eastland Apartments prior to the parties dividing any remaining proceeds. Defendant also argues the Trial Court erred in finding Plaintiff to be a partner with regard to certain land titled in the names of Defendant and Brian Montgomery. Next, Defendant argues the Trial Court erred when it concluded Brian Montgomery was a partner with regard to the marina, and further erred in awarding Plaintiff and Brian Montgomery certain offsets and credits on their portion of the value of the marina. Defendant further argues that the Trial Court erred when it ordered the parties’ property to be sold and divided in such a manner that did not allow Defendant to recoup his initial investments.

Separate and apart from any issues involving the claimed partnership and its assets, Plaintiff also claimed Defendant illegally wiretapped her telephone, thereby entitling her to statutory damages. The Trial Court held that Defendant had violated the applicable statute and awarded Plaintiff $10,000 in statutory damages. On appeal, Plaintiff claims there were three separate illegal wiretaps and, therefore, she should have been awarded $10,000 in damages for each violation, for a total of $30,000. Defendant argues that the Trial Court improperly awarded Plaintiff $10,000 in damages and claims that any award to Plaintiff for the illegal wiretap would constitute an abuse of discretion.

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

“Generally, what will constitute a partnership is a matter of law, but whether a partnership exists under conflicting evidence is one of fact.” Messer Griesheim Indus., Inc. v. Cruotech of Kingsport, Inc., 45 S.W.3d 588, 605 (Tenn.Ct.App.2001)(quoting Wyatt v. Brown, 39 TenmApp. 28, 281 S.W.2d 64, 68 (1955)). Since there is no written partnership agreement between any of the parties to this litigation, the party alleging the existence of the partnership carries the burden of proving that fact by clear and convincing evidence. See Tidwell v. Walden, 205 Tenn. 705, 330 S.W.2d 317, 319 (1959); Kuderewski v. Estate of Hobbs, No. E2000-02515-COA-R3-CV, 2001 WL 862618, at *2, 2001 Tenn.App. LEXIS 561, at **10-11 (Tenn.Ct.App. July 30, 2001), no appl. perm, appeal filed.

The Revised Uniform Partnership Act defines a “partnership” generally as “an association of two (2) or more persons to carry on as co-owners of a business or other undertaking for profit ....” Tenn. Code Ann. § 61-1-101(6). Our Supreme Court provided further guidance in Bass v. Bass, 814 S.W.2d 38 (Tenn.1991) when it stated:

In determining whether one is a partner, no one fact or circumstance may be pointed to as a conclusive test, but each case must be decided upon consideration of all relevant facts, actions, and conduct of the parties. Roberts v. Lebanon Appliance Service Co., 779 S.W.2d 793, 795 (Tenn.1989). If the parties’ business brings them within the scope of a joint business undertaking for mutual profit— that is to say if they place their money, assets, labor, or skill in commerce with the understanding that profits will be shared between them — the result is a partnership whether or not the parties understood that it would be so. Pritchett v. Thomas Plater & Co., 144 Tenn. 406, 232 S.W. 961, 969-70 (1921).
Moreover, the existence of a partnership depends upon the intention of the parties, and the controlling intention in this regard is that ascertainable from the acts of the parties. Wyatt v. Brown, 39 Tenn.App. 28, 281 S.W.2d 64, 67 (1955). Although a contract of partnership, either express or implied, is essential to the creation of partnership status, it is not essential that the parties actually intend to become partners. Wyatt, 281 S.W.2d at 67. The existence of a partnership is not a question of the parties’ undisclosed intention or even the terminology they use to describe their relationship, nor is it necessary that the parties have an understanding of the legal effect of their acts. Roberts, 779 S.W.2d at 795-96. It is the intent to do the things which constitute a partnership that determines whether individuals are partners, regardless if it is their purpose to create or avoid the relationship. Wyatt, 281 S.W.2d at 67. Stated another way, the existence of a partnership may be implied from the circumstances where it appears that the individuals involved have entered into a business relationship for profit, combining them property, labor, skill, experience, or money.

Bass, 814 S.W.2d at 41 (footnote omitted).

It is important to note that the statutory factors contained in Tenn.Code Ann. § 36-4 — 121(c) which are to be considered when dividing marital property do not apply in this case. In Martin v. Coleman, 19 S.W.3d 757 (Tenn.2000), our Supreme Court affirmed a conclusion by the trial court that there was an implied partnership between Delores Coleman and Robert Coleman. The Colemans had been married and divorced. They later reunited and lived together unmarried for sixteen more years. The Supreme Court concluded that Mr. Coleman’s retirement benefits were not part of the Colemans’ business partnership and, therefore, were not partnership assets subject to division. In reaching this conclusion, the Court specifically refused to consider Ms. Coleman’s contributions as a homemaker because such contributions were beyond the parties’ business relationship. Id. at 761-62. Of course, if the Colemans had been married, Ms. Coleman’s contributions as a homemaker indeed would have been relevant. See Tenn.Code Ann. § 36-4-121(c)(5). The Coleman Court also refused to hold that unmarried couples could create an implied partnership simply by their “continued cohabitation.” Id. See also Story v. Lanier, 166 S.W.3d 167, 178-179 (Tenn.Ct.App., 2004) (“While we are mindful of Ms. Story’s contributions to the [domestic] relationship following this [business] transaction, we are directed to focus our attention upon the facts as they relate to the parties’ decision to enter this particular transaction, not the facts as they relate to domestic matters.”).

Our starting point is to decide whether the Trial Court concluded the partnership began in 1971 or 1981. After making the credibility determinations quoted earlier in this Opinion, the Trial Court made numerous findings of fact regarding, inter alia, the parties’ various business ventures, the operation of these businesses over the years, as well as contributions to the business ventures by Plaintiff and Defendant and, when applicable, by Brian Montgomery. Even though many of the findings of fact often are duplicated, all in all they comprise approximately sixty-one (61) pages. The Trial Court’s Judgment was well-considered and thorough. As noted previously, the Trial Court held that the parties’ business partnership began with the advent of the masonry business. Along this line the Trial Court’s first five of its many findings of fact regarding the masonry business are as follows:

In 1971, the decision that Terry become self-employed was joint, and Bea Montgomery began to participate in the masonry business as soon as Terry began to work as a self-employed person in 1971.
In 1973 Bea and Terry Montgomery entered into a business relationship for profit, combining their property, labor, skill, experience, and money. Terry and Bea began a masonry business as a self employment in Terry’s name.
Bea was at that time earning more than Terry.
Bea Montgomery’s work supplied the health insurance for all three through 1982.
Bea began to participate in the masonry business as soon as Terry Montgomery began to operate as a self-employed person in 1971 in that they opened a joint account for the masonry business in 1971.

Throughout the findings of fact and to the extent applicable, the Trial Court continued to reference pertinent events with regard to the parties’ business ventures which had taken place prior to 1981. We believe it is clear that the Trial Court determined Plaintiffs and Defendant’s partnership first began with the masonry business in 1971 and continued thereafter. Therefore, we agree with Plaintiff that the reference in the Judgment to the year when the partnership began as “1981” was indeed a typographical error and should have read “1971”.

Defendant claims the Trial Court erred when it concluded he and Plaintiff were equal partners in: (1) the masonry business; (2) the Milligan lot; (3) the Eastland Apartments; (4) certain real estate located in Florida; and (5) land titled in the names of Defendant and Brian Montgomery and which is located across from the marina. With regard to the masonry business, we previously have set forth only the first five factual findings made by the Trial Court. Other factual findings detailing Plaintiffs contributions to the masonry business include, but are not limited to: Plaintiff handled the payroll account, paid the bills and signed all of the checks for the business, prepared the 1099’s, handled the workers’ compensation insurance, filed documents with the IRS including tax returns, handled the book keeping, made the deposits, collected the debts, and placed orders and handled the invoices. The Trial Court also found that Plaintiff never received any wages or a salary for her work in the masonry business. Instead, proceeds from the masonry business were deposited into savings and money market accounts which were joint accounts held in the names of both Plaintiff and Defendant.

In 1980, Plaintiff and Defendant purchased one acre of land for $2,500 using joint funds. Plaintiffs net earnings at that point in time were roughly $4,000 more per year than Defendant’s earnings. The land was purchased from Defendant’s cousin, Gene Lewis (“Lewis”). This land was titled only in Defendant’s name even though joint funds were used for its purchase. Plaintiff and Defendant discussed building apartments on this land and eventually decided to “take on that venture.” Defendant and Lewis began constructing the apartments in 1980. In 1982, Lewis wanted out of the apartment business. Plaintiff and Defendant agreed to buy-out Lewis’ interest, which they did together. Defendant continued to construct the apartments and in 1986 they were completed and began to generate revenue.

Plaintiff was working for a credit company during the first year or two of the construction of the apartments and her earnings were deposited into joint accounts. Beginning in 1982 and continuing after construction on the apartments was completed, Plaintiff devoted much of her efforts to another one of the parties’ business ventures. Specifically, Plaintiff operated and managed the Elizabethton Nautilus gym. Plaintiff also managed a second Nautilus gym located in Johnson City during 1982 and a portion of 1983. The Johnson City Nautilus gym was sold in 1983 for a net gain of approximately $37,000, of which over $26,000 was used to purchase Lewis’ interest in the apartment complex. Plaintiff assisted in managing the apartments once they were completed. Leases with tenants showed Plaintiff and Defendant as the lessors. The lessees made their checks payable to Plaintiff, who then deposited the checks into a joint account. Plaintiff received no wages or salary for her involvement with the apartments.

Much of Defendant’s brief is devoted to comparing and contrasting the contributions of each partner to the various business ventures. We certainly agree with Defendant that the contributions of the partners may be important when determining how much of an interest each partner has in an implied partnership. In the present case there was considerable disagreement over the extent of the parties’ contributions. In resolving the conflicting testimony, the Trial Court made specific credibility determinations and ultimately credited the testimony of Plaintiff and Brian Montgomery over that of Defendant. “Unlike this Court, the trial court observed the manner and demeanor of the witnesses and was in the best position to evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn.Ct.App.2000). A trial court’s determinations regarding credibility are accorded deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn.2001). In light of the foregoing, we are unable from our review of the record to conclude that the preponderance of the evidence weighs against the Trial Court’s factual findings as to the quality and quantity of Plaintiffs contributions to the parties’ business ventures.

Having affirmed the Trial Court’s factual findings as to Plaintiffs contributions, we next consider whether the facts as found by the Trial Court support its conclusion that Plaintiff proved by clear and convincing evidence that there was a partnership between her and Defendant and that they were equal partners. In support of his claim that the Trial Court erred in concluding Plaintiff was a partner with regard to the businesses and assets at issue on appeal, Defendant again focuses almost exclusively on each party’s specific contributions to each particular business venture. In so doing Defendant dramatically downplays Plaintiffs contributions and fails even to mention many of the Trial Court’s factual findings. For example, when discussing Plaintiffs contribution to the Eastland Apartments, Defendant states that “[a]t best” all Plaintiff did was “she ran some errands and collected some rent.” We are puzzled by this characterization given that the land upon which the apartments were built was purchased with joint funds and Lewis’ interest in the apartment complex was bought-out using funds from the sale of the Johnson City Nautilus gym which had been operated solely by Plaintiff.

Fortunately, we are not required to discuss each and every one of Plaintiffs and Defendant’s contributions to each separate business venture. This is so because the Trial Court found there was one implied partnership between Plaintiff and Defendant with one goal, “to acquire assets and make substantial income.” In other words, the Trial Court did not find that each particular business venture constituted a unique or separate partnership but rather that there was one partnership between Plaintiff and Defendant which had several business ventures as partnership assets. Since there was only one partnership with one collective goal even though this one partnership operated several businesses, it is not at all surprising that Plaintiff and Defendant devoted different amounts of time to the various businesses. Thus, while Defendant was busy constructing the Eastland Apartments, Plaintiff was busy operating one and for a period of time two Nautilus gyms. In fact, the Trial Court found that Plaintiff would begin working at the Elizabethton Nautilus at 7:00 a.m. and typically did not leave until 9:00 p.m. Plaintiff taught aerobics classes, etc., and when the gym was closed in the evenings, she did the necessary cleaning. When Plaintiff operated both Nautilus gyms, she alternated her time between the two facilities. The point being, the critical finding in this case is that both Plaintiff and Defendant devoted substantially equal amounts of time and effort to the partnership and to achieving its goal, not whether they devoted the exact same amount of time to each separate aspect or asset of the partnership.

As set forth in Bass, a partnership “may be implied from the circumstances where it appears that the individuals involved have entered into a business relationship for profit, combining their property, labor, skill, experience, or money.” 814 S.W.2d at 41 (emphasis added). In the present case, it is clear to this Court, as it was to the Trial Court, that the parties entered into a business relationship for profit, and combined their property, labor, skill, experience, and money. We have discussed some but by no means all of Plaintiffs contributions to the partnership. After reviewing all of Plaintiffs contributions and the numerous other findings of fact detailed by the Trial Court, we affirm without hesitation the Trial Court’s conclusion that Plaintiff proved by clear and convincing evidence that she and Defendant were business partners, that they were equal partners, that there was one partnership between Plaintiff and Defendant which involved all their various business pursuits, and that this partnership started in 1971.

The next issue is Defendant’s claim that even if he and Plaintiff were business partners, the Trial Court nevertheless erred when it failed to allow him to recoup his initial investment of $180,000 in the Eastland Apartments. In making this argument Defendant relies upon an inception date of 1981 for when the partnership began, a position we have rejected. Defendant and Plaintiff agree that when the Eastland Apartments were completed in 1986, they were worth $180,000 and there was no corresponding debt. Defendant then claims that between 1981 and 1986, all Plaintiff did to assist with the apartments was “running errands.” Taking that one step further, Defendant then argues that since Plaintiff essentially did nothing between 1981 and 1986, the initial investment of $180,000 must somehow be all his and he is entitled to recoup that initial investment before any excess value is distributed.

We reject this argument for three reasons. First, once again Defendant overlooks Plaintiffs financial contributions to the apartment complex when the land was purchased with joint partnership funds and thereafter when the Johnson City Nautilus gym being operated only by Plaintiff was sold to buy-out Lewis’ interest in this property. Second, when Defendant was devoting so much time and effort to the Eastland Apartments, Plaintiff was devoting an equivalent amount of time and effort to other partnership ventures. Third, the partnership began in 1971, not 1981, and Defendant has not shown that any part of his claimed initial investment was paid with non-partnership funds. This issue is without merit.

The next issue surrounds the marina and Defendant’s claim that the Trial Court erred when it concluded Brian Montgomery also was an equal one-third partner in this business venture. Before we resolve this issue there are two points worth mentioning. First, Defendant does not challenge the Trial Court’s conclusion that Plaintiff was a partner in the marina. Second, on appeal both Brian and Plaintiff ask this Court to affirm the Trial Court’s finding that Brian was an equal one-third partner.

In the Judgment the Trial Court also made many findings of fact surrounding Brian Montgomery’s contributions to the marina. Some of these factual findings are:

It took approximately 3 to 4 years to get the approval from the TVA for the marina and the ... effort for this and the paperwork and meetings were primarily with Bea. All of the contact -with the TVA was done from the Elizabethton Nautilus office where Bea was managing. ... Correspondence with TVA was handled through Brian and Bea. Terry, Brian and Bea went to the county court clerk and applied for the business license for the Marina. Business license for the Marina was listed in their 3 names. It was discussed and agreed that Bea, Terry and Brian would be partners from the beginning in the Marina. It was to be a family business....
Brian had finished 3 years at East Tennessee State, and decided he was interested in going away to chiropractic school.... Brian, Bea and Terry [later] decided to forgo the expense of chiropractic school and use those funds instead in developing the Marina.... Brian’s plans changed after the conversations between Terry, Bea and Brian relative to the partnership in the Marina. Terry expressed that he hated to see Brian leave home to go to college .... Terry said to Brian, “What would it take to get you to stay here and manage the marina?” ... Brian was told that he was to manage it and become a partner in it.... Terry and Bea told him that they would be sharing the profits with him. The improvements and the buildings were all a joint efforts (sic) between Brian and Terry and Bea. (citations to the trial record omitted)

In addition to the foregoing, the Trial Court also found that Brian and his wife, Sherry, lived primarily at the marina and took responsibility for running the day to day operations. Brian and Sherry also purchased equipment for the marina, including $18,177.28 for a John Deere 955 tractor, and $7,800 for a John Deere 755 tractor. Brian also marketed the marina at boat shows and hosted boat shows at the marina.

For the same reasons set forth earlier, including the fact that credibility determinations significantly impacted the Trial Court’s findings, we are unable to conclude that the preponderance of the evidence weighs against these factual findings by the Trial Court. Likewise, we further affirm the Trial Court’s finding that Brian Montgomery proved by clear and convincing evidence that he was a one-third partner in the marina, with Plaintiff and Defendant each owning a one-third interest as well.

Another asset at issue involves 33.3 acres of land located across the road from the marina. The Trial Court found this land was purchased by Plaintiff and Defendant for $50,000 using funds from their joint account. This land was titled in the names of Defendant and Brian Montgomery. The Trial Court concluded that Plaintiff and Defendant had an undivided one-half interest in this land, and Brian Montgomery had the remaining one-half interest. On appeal, Defendant challenges whether Plaintiff should be considered a partner in this asset. Since this land was purchased with Plaintiff and Defendant’s joint funds and because the purchase took place well after the business partnership began in 1971, we readily hold that the Trial Court properly concluded that Plaintiff was a partner as to this asset as well. However, we believe the Judgment should be modified to reflect that Plaintiff, Defendant, and Brian Montgomery each own a one-third partnership interest in this property as they did in the Marina itself. We also believe the Judgment should be modified so that Plaintiff and Defendant are reimbursed for their initial investment of $50,000, with each of them receiving $25,000 prior to the remaining proceeds from the sale of this land being distributed equally among Plaintiff, Defendant, and Brian Montgomery. As modified, the Trial Court’s conclusion with regard to this asset is otherwise affirmed.

Defendant’s next issue is his claim that the Trial Court erred when it failed to apply the Uniform Partnership Act and allow him to be repaid his initial contributions to certain assets prior to any remaining proceeds being distributed among the partners. As we pointed out in footnote 4, supra, the Trial Court allowed Plaintiff and Defendant to recover their initial contributions to the purchase of the marina land and a “large metal building” prior to Brian receiving his one-third share. We also have modified the Judgment to allow Plaintiff and Defendant to recover their initial $50,000 investment in the 33.3 acres of land located across from the marina. Thus, at least with respect to the two assets where Brian was held to be a partner, Defendant has been allowed to recover his initial investments.

With regard to Defendant’s partnership with Plaintiff, Defendant does not point us to anywhere in the record where it is shown that he made any initial contribution to the mini-mall or any other asset using funds that were not partnership funds. Contrary to Defendant’s assertions in his brief, simply because a piece of property may be titled only in his name does not mean that partnership funds were not used to purchase that property or that it is not partnership property. As to the mini-mall, it was purchased in the early 1990’s and the down-payment came from an agreement whereby rent paid for the Elizabethton Nautilus gym was to be applied toward this purchase. Thus, any initial investment clearly consisted of partnership assets and Defendant cannot claim any individual entitlement to these funds. The same result holds true for the marina as the record is replete with evidence establishing the funds used for this business venture were indeed funds of Plaintiffs and Defendant’s partnership.

The next group of issues pertains to the several credits Plaintiff and Brian Montgomery were given against Defendant’s one-third interest in the marina. Beginning in 1999, Defendant operated the marina without any assistance from Plaintiff or Brian. The Trial Court concluded that the marina partnership “terminated at that time. Whatever active income Terry Montgomery made from the marina the Court has found is his from that time on, and whatever active expenses he incurred are his.” However, the Trial Court then stated that the “passive income” still was partnership property to be divided equally among the three partners, the passive income being the depreciation deduction for income tax purposes. Stated another way, the Trial Court held that even though the partnership in the marina technically had ended, the land, buildings, etc., were still partnership property and, therefore, the depreciation deductions for that land and buildings, etc., should be divided among the partners. Because Defendant deducted on his tax returns the entire allowable depreciation, the Trial Court concluded Plaintiff and Brian were entitled to a credit. We agree with these conclusions up to this point. However, in determining the amount Plaintiff and Brian were entitled to receive as a credit, the Trial Court took the entire amount of depreciation deducted by Defendant for 1999 through 2001, then subtracted from that sum the total amount of income tax paid by Defendant for those years. The Trial Court then divided the resulting figure by one-third, holding that Plaintiff and Brian each were entitled to a credit in the amount of $65,600.

We disagree with the Trial Court’s method of calculation because it has the effect of treating the depreciation as a dollar-for-dollar tax credit, as opposed to a deduction against taxable income. Therefore, we vacate these particular credits to Plaintiff and Brian as calculated by the Trial Court. The tax returns in the record show Defendant’s total tax liability for 1999 through 2001 when he deducted from his gross income 100% of the depreciation. On remand, the Trial Court is instructed to determine the amount of taxes Defendant would have paid had he deducted only one-third of the depreciation. The Trial Court then is to deduct from this sum the amount of taxes Defendant actually paid when he deducted all of the allowable depreciation. The resulting figure should represent the amount of taxes Defendant did not have to pay because he claimed the extra two-thirds of the depreciation. This sum is to be divided with one-half being a credit to Plaintiff, and the remaining one-half being a credit to Brian. We agree with the Trial Court that these credits should be taken against Defendant’s interest in the marina which was sold for over $1.6 million while this appeal was pending.

The Trial Court also determined that Defendant had misappropriated funds totaling $94,250. From this total, $27,000 was marina funds and the Trial Court ordered Defendant to re-pay Plaintiff and Brian $9,000 each as reimbursement for their one-third share of these misappropriated funds. The Trial Court determined that the remaining $67,250 was misappropriated from funds belonging to the partnership between Plaintiff and Defendant, and the Trial Court ordered an additional reimbursement to Plaintiff of $33,625. Defendant challenges the Trial Court’s order regarding these credits, claiming simply that this money was lost in a bad investment for which all of the partners must share.

We disagree. Describing the loss of the $94,250 as a “bad investment” is a significant understatement, to say the very least. The facts show that the $94,250 was given by Defendant to his brother, Rev. Larry Montgomery, who operated the Greater Ministries International Church of Tampa. The Trial Court found the Greater Ministries Church was “just patently a pyramid scheme” and further determined that Rev. Montgomery’s credibility was even worse than Defendant’s. In short, the Trial Court concluded these “donations” were “nothing more than a spurious scheme by Terry Montgomery and his brother to keep monies and assets from any claim of Beatrice Montgomery.”

Defendant states in his brief:

Beatrice Montgomery should not be allowed to benefit from the good investments made by Terry Montgomery but not suffer the losses made in the bad investments. The Uniform Partnership Act makes all parties equally hable for debt or claims chargeable to the partnership.

We agree with Defendant’s general proposition that partners are responsible for debts properly chargeable to the partnership. However, the Trial Court did not find that Defendant simply made a bad investment. The Trial Court found Defendant and his brother engaged in fraudulent conduct in an attempt to hide partnership assets from Plaintiff. In order for us to alter the Trial Court’s judgment with regard to the $94,250, Defendant would have to successfully argue either that the preponderance of the evidence does not support the Trial Court’s factual findings, or that the partnership and its partners nevertheless should be responsible for missing funds resulting from Defendant’s fraudulent conduct. Defendant makes neither of these arguments, successfully or otherwise, and cites us to no authority which would support such a position. Therefore, we affirm the Trial Court’s judgment with regard to the $94,250.

Prior to the trial, Defendant cashed in a life insurance policy for $15,000. The Trial Court found this to be a violation of one of its previous orders and held that the $15,000 should be considered partnership assets of Plaintiff and Defendant. Accordingly, the Trial Court gave Plaintiff a credit of $7,500 against Defendant’s share of the proceeds from the sale of the marina. We fail to see how Defendant’s purchase of a life insurance policy, or cashing in such a policy, can properly be considered as part of his business partnership with Plaintiff. Defendant’s life insurance policy would be akin to the retirement benefits in Martin v. Coleman, supra, which were held by the Supreme Court not to be part of the business partnership of the Colemans who had lived together for sixteen years. Therefore, we reverse the Trial Court’s conclusion that Plaintiff is entitled to a credit of $7,500 based on Defendant cashing in his life insurance policy.

The final issue involves Defendant’s alleged illegal wiretaps in violation of Tenn.Code Ann. § 39-13-601. In its Judgment, the Trial Court pointed out that Defendant admitted to this activity once but it “appeared” to the Trial Court to have occurred on three occasions. The Trial Court awarded Plaintiff $10,000 in statutory damages.

We have reviewed the evidence, including Plaintiffs testimony, concerning these three incidents. With regard to the first incident, Plaintiff stated she found a tape recorder and “if one of us wasn’t there to answer the telephone, the messages were recorded.” As best we can tell, all Defendant was doing was recording messages. The third incident, however, clearly involved the hidden recording of conversations, not just recording messages. It is unclear from the evidence whether the second violation merely recorded messages, or also recorded conversations. Based on the foregoing, we conclude that Plaintiff proved only one violation of Tenn.Code Ann. § 39-13-601. Civil damages under this statute include actual damages or “[statutory damages of one hundred dollars ($100) a day for each day of violation or ten thousand dollars ($10,000), whichever is greater” plus attorney fees and costs. See Tenn.Code Ann. § 39-13-603(a)(1). On appeal, Defendant argues that the Trial Court abused its discretion in awarding Plaintiff $10,000 in damages. Unfortunately for Defendant, the Western Section of this Court recently issued its opinion in Robinson v. Fulliton, 140 S.W.3d 312 (Tenn.Ct.App.2003). In Robinson, we held that when actual damages are less than the statutory damages of $10,000, a trial court is “required to award ... the $10,000 statutory damages at a minimum.” Id. at 324. In any event, we would not find an abuse of discretion by the Trial Court in awarding this $10,000. Therefore, we affirm the Trial Court’s award to Plaintiff of damages in the amount of $10,000 for the Defendant’s single violation of Tenn.Code Ann. § 39-13-601.

Conclusion

The Judgment of the Trial Court is reversed in part, vacated in part, and affirmed in part as modified. This cause is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs below. Exercising our discretion, costs on appeal are taxed one-third against the Appellant Terry Lane Montgomery and his surety, one-third against the Appellee Beatrice Harmon Montgomery, and one-third against the Appellee Brian Montgomery.

      . Although Brian Montgomery is an intervening plaintiff in this lawsuit, any reference in this Opinion to "Plaintiff” refers only to Beatrice Montgomery.

      . Plaintiff claimed she and Defendant had a valid common law marriage because they lived together in Florida for a sufficient amount of time to be considered married under Florida's then existing laws. Although Plaintiff advanced this and other theories in support of her argument that she and Defendant actually were married, the Trial Court found otherwise and this finding is not challenged on appeal. Nevertheless, during their relationship the parties held themselves out as being married and we note that the Trial Court referred to them as either Mr. or Mrs. Montgomery, or Terry and Bea Montgomery.

      . When equitably distributing marital property in a divorce case, Tenn.Code Ann. § 36-4-121(c)(5) requires a trial court to consider 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.”

      . We note that the Trial Court also held that Plaintiff and Defendant were entitled to be reimbursed for their initial investment in the marina land and a "large metal building” located on the marina premises. These investments were made prior to Brian Montgomery becoming a partner and it was agreed that the value of these investments at the time they were made totaled $100,000. The Trial Court ordered Plaintiff and Defendant each to receive $50,000 from the sale of the marina prior to the remaining proceeds being divided one-third among each of the three partners. Our holding does not disturb this finding and resulting order by the Trial Court.

      . By way of example only, let’s assume Defendant’s total tax liability for the three years at issue was $25,000 when he deducted 100% of the depreciation. Let’s also assume that if Defendant had only deducted one-third of the depreciation, his total tax liability for the three years would have been $60,000. In this hypothetical situation, Defendant saved $35,000 by deducting the extra two-thirds of the depreciation, and Plaintiff and Brian would each be entitled to a credit for one-half of the total savings, or $17,500.