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Berkshire v. Berkshire

Court of Appeals of Tennessee, Knoxville

December 1, 2014


Session Date July 8, 2014

Appeal from the General Sessions Court for Roane County No. 9099A Dennis W. Humphrey, Judge

Tom McFarland and Katherine S. Parks, Kingston, Tennessee, for the appellant, Sherry Juanita Carter Berkshire.

Browder G. Williams, Kingston, Tennessee, for the appellee, Edwin Carl Berkshire, III.

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.




The parties were married on August 27, 1999. Wife was forty-six and Husband was twenty-seven. It was Husband's first marriage. Wife had been married twice before and had two daughters from one of those marriages. At the time of her marriage to Husband, Wife had health problems including a diagnosis of multiple sclerosis. The record reflects that the parties discussed Wife's health condition, including her MS, before they married.

Both parties finished high school. Husband attended vocational school and trained for two years to be a diesel mechanic. Husband worked as an automobile mechanic throughout the marriage. Wife did not work outside the home. Her younger daughter, Tara, was approximately sixteen years old at the time of the marriage. Tara lived with the parties over the course of the entire marriage, and was still residing with Wife at the time of the hearing below.

Wife filed for divorce on June 26, 2008. Despite the divorce filing, the parties continued to live together. They attempted to reconcile. Neither party attempted to pursue the case until shortly after Husband moved out of the home on or about May 31, 2011. Wife then filed a motion on June 7, 2011, for default judgment or, in the alternative, for temporary spousal support. The trial court entered an agreed order granting Wife alimony pendente lite in the amount of $600 per week on September 1, 2011, entered nunc pro tunc to July 28, 2011. On May 3, 2013, the trial court entered an order, nunc pro tunc to April 10, 2013, that reduced Husband's alimony pendente lite payments to $400 per week.

The case was tried over three days spanning the period from August 29, 2012, to July 26, 2013. The trial court entered its final judgment on September 5, 2013, granting Wife a divorce on the ground of adultery. The trial court awarded Wife the marital residence, valued at $130, 000, and held her responsible for the balance of the mortgage, which was approximately $55, 000. The court found Husband's equity interest in the marital residence to be $75, 000, and awarded Wife that entire amount as alimony in solido.[1] The division of marital property and debt resulted in a net award to Wife in the amount of $92, 339.29 and to Husband, a net of negative $11, 426.98. Husband received personal property classified as his separate property in an amount valued at $25, 100.55, and Wife received $15, 400 in separate property. Neither party takes issue on appeal with the trial court's property division.

Regarding alimony, the trial court entered a memorandum opinion providing, in pertinent part, the following findings of fact and conclusions of law:

The Court finds [Wife] is not capable of obtaining employment due to her age and to [her] illnesses.
As to alimony, the Court must consider testimony and argument to the effect that Wife is eligible for social security disability benefits, arguably to receive as much as $1, 000 per month, and that all her prescriptions and medical expenses could be paid by TennCare. This divorce was filed June 26, 2008, but she apparently has not applied for such benefits, and possibly intends to seek such after the divorce is concluded. Not taking such available benefits into account would be a disservice to Husband. Certainly, the need for alimony exists. Wife's counsel seeks the Court to base the alimony on Husband's 2011 income of $96, 747, arguing he has that capability with his specialized training as an automobile mechanic, and voluntarily reduced his income to avoid a higher alimony award, while Husband's counsel argues the alimony should be based on his current income ranging around $62, 000, presenting in Exhibit 15 income for the years from 2006 through 2012, generally a figure between $58, 886 to $60, 729, with $96, 747 for 2011 and $86, 840 for 2012. For those years of the highest income, Husband was driving from his residence in Roane County to a car dealership in Cookeville, roughly a 150 mile round trip each day, and such being one of the factors for his terminating that employment and accepting local employment. Though the Court resolves the issue of credibility in favor of Wife, on this issue the Court accepts Husband's position that this was not a voluntary reduction of income to avoid an alimony obligation.
The Court finds this to be a marriage of relatively short term[2]and awards transitional alimony in the amount of $600 per week for August [2013] and then $400 each month until the end of November [2013], thus providing to Wife an opportunity to apply for social security disability benefits and TennCare insurance. Wife is further awarded an attorney's fee of $2, 000.

(Footnote added.) Wife timely filed a notice of appeal.


Wife raises the following issues, as quoted verbatim from her brief:

1. Whether the trial court erred in failing to award permanent alimony to [her].
2. Whether the lower court erred by not awarding [Wife] her reasonable attorney's fees.
3. Whether this Court should award [Wife] her attorney's fees on appeal.
4. Whether the trial court erred in ordering [Wife] to be responsible for indebtedness of [the] marital home and to refinance the mortgage in her own name when the ...

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