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Henderson v. Henderson

Court of Appeals of Tennessee, Nashville

September 23, 2014

MELISSA ANN HENDERSON
v.
RICHARD BARRY HENDERSON

Session Date August 20, 2014

Appeal from the Circuit Court for Marion County No. 19251 J. Curtis Smith, Judge

John P. Konvalinka and Jillyn M. O'Shaughnessy, Chattanooga, Tennessee, for the appellant, Richard Barry Henderson.

Kathryn R. Leiderman, Jasper, Tennessee, for the appellee, Melissa Ann Henderson.

Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

OPINION

ANDY D. BENNETT, JUDGE

Melissa Ann Henderson ("Wife") and Richard Barry Henderson ("Husband") were married for over twenty-one years when they separated in early 2011. They have two children who are currently seventeen and nineteen years old. Wife filed a complaint for divorce in January 2011, alleging inappropriate marital conduct or, in the alternative, irreconcilable differences. Husband filed an answer and counter-complaint seeking a divorce on the same grounds.

The case was tried over a period of four days in the summer and fall of 2012. The trial court filed a memorandum opinion and order on March 22, 2013, and then entered an amended memorandum opinion and order on July 18, 2013. In the amended opinion, the court awarded the parties a divorce based on irreconcilable differences. The court then classified, valued, and divided the parties' marital property, awarded Wife alimony in futuro, and designated Husband as the primary residential parent. Husband appeals, raising two issues. First, Husband contends the trial court erred in the type and amount of alimony it awarded Wife. Second, Husband contends the trial court erred in the designation, valuation, and allocation of certain items of the parties' property. Wife appeals no part of the amended order, but she seeks an award of the attorney fees she incurred as a result of Husband's appeal.

I. Alimony

The evidence introduced at trial established that Wife graduated from high school in 1980 and took just a few college level courses. She attended hairdressing school and earned her cosmetology license in 1983. Wife has worked in her mother's beauty salon since 1983. She worked part-time at the children's school from approximately 2006 through 2010 and also worked part-time at a women's clothing store from 2009-2011, until her position was eliminated.

Husband obtained a Bachelor of Science degree in Agriculture from Middle Tennessee State University in 1978. He has been able to continue his education through courses provided by the Tennessee Valley Authority ("TVA") and the United States Department of Agriculture-Natural Resources Conservation Services. Husband is a certified professional soil scientist and a registered professional environmental specialist with the National Environmental Health Association. He is licensed as a soil consultant in Tennessee, Georgia, and Alabama.

During the parties' marriage, Husband initially worked as an environmentalist for the Hamilton County Health Department, where he was employed until May 2003. Husband was hired by the TVA to work as an Assistant Unit Operator in November 2004, and he was still employed in that capacity at the time of trial. In addition to his job with the TVA, Husband started his own soil consulting business in 1990.

Wife's income has always been much lower than Husband's income, and Wife has been dependent on Husband for financial support throughout the parties' marriage. Husband provided the majority of the financial support for the family throughout the marriage, even when his earnings were lower in earlier years. Wife testified at trial that she earns an average of $650 per month working at her mother's salon. She has looked for jobs at other salons in the area where she lives, but she has not been able to find a position elsewhere.

Husband earned over $109, 000 from his job at TVA in 2011. At the time of trial, Husband was on track to earn at least $99, 000 for the 2012 year, which does not include the annual bonus he normally receives in December of each year. In addition to his income from TVA, Husband has earned varying amounts from his soil consulting business. The trial court found that Husband's "income potential" as a soil consultant was $25, 000 per year. Husband does not contest this finding.

Wife testified and produced documentary evidence showing her monthly expenses approximate $3, 100. Based on her average monthly income of $650, Wife's expenses exceed her income by about $2, 450. Husband, on the other hand, had a gross monthly income of $9, 216 at the time of trial. His income and expense statement shows his expenses exceed his income by $109. Father included the children's expenses in his overall expenses. Husband's testimony revealed, however, that he accounted for some expenses more than once. In addition, the parties' children have attended private school since kindergarten, and the elder child was expected to graduate in the spring of 2013. Husband included a monthly expense of $1, 500 for the children's tuition. The evidence showed Husband's expenses will be reduced by $750 per month going forward with only one child still attending private school.

In addition to evidence of the parties' incomes and expenses, Wife testified that she has some health issues that affect her ability to work. As the result of a fall at McDonald's in 2010, Wife suffered a compression fracture and had to undergo lumbar surgery. Her mobility has been compromised as a result of the fall. Wife testified that she has had physical therapy, but she still suffers pain and has to lie down when the pain becomes too severe. In addition, Wife testified that she has arthritis in her hands and feet.

Husband contends the court should have awarded Wife rehabilitative or transitional alimony and that the award should be reduced to $750 per month. Husband asserts Wife has the capacity to earn more than she currently earns and that her expenses are minimal. Husband also contends he does not have the ability to pay Wife more than $750 per month.

The Court of Appeals reviews the trial court's findings of fact de novo, according the trial court a presumption of correctness, unless the preponderance of the evidence convinces the Court otherwise. Tenn. R. App. P. 13(d); Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 515 (Tenn. 2012). The trial court has wide discretion in determining the type, amount, and duration of alimony to award. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).

This determination is "factually driven and involves the careful balancing of many factors." Id. (footnote omitted). Appellate courts will not interfere with or alter the trial court's exercise of that discretion absent an abuse of discretion. Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000); Riggs v. Riggs, 250 S.W.3d 453, 456-57 (Tenn. Ct. App. 2007); Sullivan v. Sullivan, 107 S.W.3d 507, 511 (Tenn. Ct. App. 2002).

"'The role of an appellate court in reviewing an award of spousal support is to determine whether the trial court applied the correct legal standard and reached a decision that is not clearly unreasonable.'" Gonsewski, 350 S.W.3d at 105 (quoting Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006)). To show the trial court abused its discretion, Husband is required to show the court applied the wrong legal standard, arrived at a decision that is not logical, resolved the case on a clearly erroneous assessment of the evidence, or used reasoning that caused Husband to suffer an injustice. Gonsewski, 350 S.W.3d at 105; Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). The appellate court is not permitted to substitute its judgment for that of the trial court when reviewing the trial court's judgment for an abuse of discretion. Gonsewski, 350 S.W.3d at 105; Eldridge, 42 S.W.3d at 85.

Tennessee recognizes four different types of alimony, or spousal support: rehabilitative alimony, alimony in futuro, alimony in solido, and transitional alimony. Tenn. Code Ann. § 36-5-121 (Supp. 2013). There is a statutory preference for rehabilitative or transitional alimony, Tenn. Code Ann. § 36-5-121(d)(2), but "[t]his statutory preference does not entirely displace the other forms of spousal support when the facts of the case warrant long-term or more open-ended support." Gillespie v. Gillespie, No. E2006-00734-R3-CV, 2006 WL 3732195, at *3 (Tenn. Ct. App. Dec. 19, 2006) (citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995)).

Tennessee Code Annotated section 36-5-121(i) sets forth factors the trial court is to consider when determining whether to award spousal support, and if so, the type and amount to award. These factors include the following:

(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a ...

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