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Horine v. Horine

Court of Appeals of Tennessee, Knoxville

November 24, 2014


Session Date September 30, 2014

Appeal from the Probate Court for Cumberland County No. 2011PF2376 Larry Michael Warner, Judge

Charles Craig Northcott, Tullahoma, Tennessee, for the appellant, Barbara Lynn Horine.

Kevin D. Poore, Crossville, Tennessee, for the appellee, James Alan Horine.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which D. Michael Swiney, J., and Kenny Armstrong, J., joined.




Plaintiff/Appellant Barbara Lynn Horine ("Wife") and Defendant/Appellee James Alan Horine ("Husband") were married on October 9, 1969 and remained married for forty-three years. They had two children, who are now adults. In addition, the parties adopted their biological grandson ("the child"), who is now twelve years old. Husband is currently sixty five years old, and Wife is currently sixty three years old. In the summer of 2011, the parties separated. Wife filed a complaint for legal separation in Coffee County on August 11, 2011. Husband filed a complaint for divorce in Cumberland County on September 7, 2011. Wife's complaint was transferred and consolidated with the Cumberland County matter.

A trial occurred on June 3, June 4, and June 13, 2014. Much of the trial testimony focused on the parties' work histories. Both parties testified that Husband was the primary wage earner during the parties' marriage, though Wife worked some during the marriage. Husband has a bachelor's degree in Aeronautical Studies, and a master's degree in counseling. He had a twenty year career in the United States Army; he retired in 1990 with the rank of major. From 1990 to 1992, he worked for RainSoft National Brand, a company that installs and repairs home water treatment systems. In 1992, he accepted a position with the State of Tennessee in the Department of Children's Services as a guard, and he was promoted to correctional counselor in 1993. While Husband worked for the State, he received approximately $41, 000 annually. Husband continued as a counselor for the State until 2012, when the state's facility closed. At trial, Husband testified that he currently holds a part-time position as drug and alcohol counselor working approximately twenty hours per week. However, he testified that he holds a specialized counseling license, which gives him the title of Licensed Alcohol and Drug Abuse Counselor. At the time of trial, he received $19.75 per hour for twenty hours per week from Corizon, Inc. for his counseling services. He also received $2, 626.00 per month from his military retirement account and $1, 021.00 from the State from his pension.

Wife testified that she completed the eleventh grade and obtained her GED, but that her education and career had not been a priority during the parties' marriage. Instead, Wife testified that her focus was on on the parties' two children and Husband's military career, which caused the parties to move frequently. Once the children became school-aged, in the late 1970s and early 1980s, Wife testified that she had several "odd jobs, " none of which, she contended, paid substantially more than minimum wage. Indeed, Mother's testimony shows that over a period of a single year, she worked for a doctor, a veterinarian, WalMart, and a midwife. From 1997 until 2002, she worked as a medical transcriptionist, but she testified that she had trouble performing this job because of hearing loss. Wife testified that the parties experienced a brief separation in 2002 when Husband "declared his love for another woman." This led to a six month separation. Upon reconciling, Wife never returned to work. Instead, Wife testified that when the child was taken into the home, it was agreed that Wife would focus on child-rearing, just as she had done for the parties' other children.

At trial, Wife testified that she had no income. Wife testified that she has several physical ailments that prevent her from working, including hearing loss, a bladder condition, and joint issues. In contrast, Husband did not testify as to any physical conditions that would impact his ability to be employed.

Both parties testified to the value of various property jointly owned by the parties, including the marital home, which they both valued at approximately $400, 000.00. The home was secured by a mortgage for approximately $155, 000.00. At the time of trial, Husband was living in the home, while Wife was residing with her adult son in Coffee County with the minor child. Wife testified that she needs considerable funds in order to buy her own home, which arrangement she believes is in the best interest of the child. Wife further testified that her expenses well exceed her income and requested that the trial court award her alimony, in addition to her marital portion of Husband's retirement benefits and child support. Both parties admitted to having affairs during the marriage, though Wife's was many years prior to the ultimate breakdown of the relationship.

The trial court made an oral ruling at the conclusion of trial. A written order memorializing the trial court's ruling was entered on September 23, 2013. The divorce was awarded to Wife on the ground of Husband's inappropriate marital conduct "with specificity to general attitude, but not to any specific acts." Wife was named the primary residential parent of the child and the parties were ordered to agree to a visitation schedule, otherwise the trial court would order standard visitation.[1] Husband and Wife were awarded the personal property in their possession. Wife was also awarded one-half of Husband's monthly military retirement pay, his monthly State of Tennessee retirement pay, and his 401K. Wife was also awarded the parties' dogs and the personal property relating to them. Husband and Wife were each awarded various other personal property not at issue in this appeal.

Husband was awarded possession of the marital home, pending its sale. However, the trial court ruled that if the home was not sold by June 13, 2014, the property was to be auctioned by an agreed upon auction company or the court.[2] Regardless of the method of sale, the proceeds of the sale were to be paid out in the following order:

1. To pay the costs of the sale.
2. To pay the remaining joint indebtedness of the parties.
3. To reimburse Husband for one-half of his mortgage payments from the date of the trial court's order through the date of the sale of the property.
4. Twenty-five percent of the remaining balance to be awarded to Wife as "lump sum alimony."
5. The remaining balance of the proceeds were to be divided equally among the parties.

With regard to child support, the trial court imputed income to both parties. Husband's monthly income for child support and alimony purposes was set as "the larger of Husband being imputed income at 40 hours per week at minimum wage ($1256.66) or the amount that he is currently earning at his employment ($1711.67)." The trial court imputed income to Wife equivalent to a twenty hour per week minimum wage job, or $628.33 per month. In addition, the trial court included in Wife's monthly income the $600.00 per month that Wife estimated she would be eligible to receive from the Social Security Administration. Finally, the trial court ruled that both parties' incomes for purposes of child support would include the retirement pay each party was receiving pursuant to the divorce decree. As a result of these income ...

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