Session October 1, 2014
Appeal from the Probate Court for Cumberland County No. 2010PF1517 Larry Michael Warner, Judge
David B. Hamilton, Knoxville, Tennessee, for the appellant, Heather Lynn Spigner.
Jonathan R. Hamby and G. Earl Patton, Crossville, Tennessee, for the appellee, Michael Dean Spigner.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Thomas R. Frierson, II, J., and Kenny Armstrong, J. joined.
J. STEVEN STAFFORD, JUDGE
Plaintiff/Appellant Heather Lynn Spigner ("Wife") and Defendant/Appellee Michael Dean Spigner ("Husband") were married in 1994. The parties had two children during the marriage who were still minors during these proceedings. The parties were later divorced by final decree on April 5, 2011. The final decree incorporated a Marital Dissolution Agreement ("MDA"), which specifically addressed the division of marital property. The final decree was also accompanied by a Permanent Parenting Plan, that the trial court indicated was "submitted by the parties." Although the agreed parenting plan is not contained in the record, there is no dispute that Husband's child support obligation was calculated based on his testimony that his current income was approximately $60, 000.00, due to a recent demotion of his employment.
Ten months later, on February 2, 2012, Wife filed a motion to set aside the final decree pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Wife asserted that she had recently discovered information concerning both the marital assets and Husband's income for child support purposes. According to Wife, after the divorce was final, she discovered several accounts not contemplated during the divorce negotiations. Her discovery was allegedly made due to a forwarding error by the post office. These accounts include: Merrill Lynch account, MFS Fund Account, Wyndham Restricted Stock Units, and an alleged refund from the IRS from 2010. According to Wife, these alleged assets total $60, 508.00.
In her motion, Wife also alleged that Husband misrepresented his current income during a pre-divorce deposition and hearing to calculate child support. Wife asserted that she learned after the entry of the divorce decree that Husband used her name to file a joint tax return for 2010 on which he claimed $271, 659.00 as income. According to Wife, at a pre-divorce deposition in the summer of 2010, Husband testified that he had not yet filed his 2010 tax return, but that he earned approximately $160, 000.00 in 2010. Additionally, at a child support hearing in September 2010, Husband testified that he had recently been demoted from a Vice President position with Wyndham Worldwide to a sales associate. It is undisputed that Husband testified at the pre-divorce hearing that the average salary for a sales associate with Wyndham Worldwide was $60, 0000.00 per year. Based on this anticipated income, Wife asserts that the trial court set Husband's child support obligation at total $718.00 per month. In addition, Wife asserted that Husband's 2010 income tax return revealed capital gains tax on an asset worth more than $391, 994.80, which asset was neither disclosed nor divided at the conclusion of the marriage. Wife asserted that the various inaccuracies with regard to Husband's income and assets amounted to intentional misrepresentations intended to deprive her of her marital portion of the parties' property and her true child support award. Consequently, Wife requested an award of marital property in the amount of $401, 994.80, that a corrected child support order be entered requiring Husband to pay $2, 249.00 per month in child support, that she be awarded other relief, and attorney's fees.
Also on February 2, 2012, Wife filed a Petition to Modify the Permanent Parenting Plan entered by the trial court on April 5, 2011. According to Wife, the plan in place allowed each party fifty percent of the time with the children; however, Wife alleged that Husband had denied her time with the children and that Husband and his new wife had harassed her. In addition, Wife alleged that Husband enrolled the children in a private unaccredited school that has only one teacher. Wife attached a proposed permanent parenting plan to her petition, in which she sought to be named the children's primary residential parent and asked to be awarded significantly more time with the children. Based on this new parenting schedule, Wife asserted that she should be awarded $2, 335.00 per month in child support.
Finally, also on February 2, 2012, Wife filed a Petition for Civil Contempt against Husband. The petition alleged that Husband had willfully failed to divide certain assets that were ordered divided pursuant to the final divorce decree and asked that Husband be incarcerated "until such time as he causes the division of all accounts in his control which the Court has ordered divided between the parties."
On March 19, 2012, Husband answered Wife's Rule 60.02 motion and her Petition for Contempt, denying the material allegations contained therein. Specifically, Husband denied that there was any asset owned by the parties that was worth more than $391, 994.80. Further, Husband raised the affirmative defense of unclean hands in that Wife refused to participate in the division of some marital assets or otherwise frustrated their division. Also on March 19, 2012, Husband filed an answer to Wife's petition to modify the permanent parenting plan, denying that he had interfered with Wife's visitation or recently enrolled the children in an unsuitable school. Instead, Husband filed a counter-petition to modify the parenting plan, alleging that a material change in circumstances existed because Wife was "exercising her parenting time with her children in a hotel room." Further, Husband alleged that the children had always been enrolled in private school. Thus, Husband asked that he be named primary residential parent, that he be awarded substantially more time with the children, and that Wife be ordered to pay child support.
On December 21, 2012, the parties entered into an agreed order equally dividing one of the marital assets in contention—a Merrill Lynch 401K account totaling approximately $360, 000.00. On February 11, 2013, Wife filed a second Petition for Civil Contempt, alleging that Husband willfully failed to respond to discovery, despite a trial court order requiring Husband to respond by February 4, 2013.
On February 19, 2013, Husband filed a motion seeking a temporary modification of the parenting plan. In his motion, Husband alleged that Wife was verbally abusing the parties' daughter, abusing alcohol, and residing in a hotel during her visitation with the children. In addition, Husband alleged that the parties' daughter expressed a desire to reside with Husband. A hearing on Husband's petition for a temporary order was scheduled for March 19, 2012. On March 25, 2012, the trial court entered an order on Husband's motion for temporary modification of the parenting plan. The trial court found that a material change in circumstances occurred, and that it was no longer in the children's best interest to spend alternating weeks with Wife. Specifically, the trial court found that: "[I]t is not in the children's best interests to continue residing in hotel during alternative weeks that [Wife] has the children, and that changing schools would not be in their best interests at this time." Husband was, therefore, named the children's primary residential parent, and Wife was awarded standard visitation. No amended child support worksheet or permanent parenting plan was attached to the trial court's order.
The trial court heard the outstanding Rule 60.02 motion, contempt petitions, and competing petitions for modification of the parenting plan on June 17 and August 16, 2013. Both parties testified regarding the allegedly concealed accounts and income. Husband admitted that he declined to provide his 2010 income tax return during a pre-divorce deposition, as he had not filed his taxes until shortly after the entry of the final decree. Husband also admitted that he testified at the pre-divorce deposition that his income was expected to be $60, 000.00 as a sales associate, much less than his prior income. However, Husband testified that the sales associate income was due to a demotion and that it was what he reasonably anticipated to earn in the new position. Further, Husband testified that he no longer worked for the same company, and had recently sought other employment. Finally, Husband denied that any assets or income were concealed from Wife during the marriage or divorce, as Wife was the party who typically dealt with all of the couple's financial matters. Indeed, Wife admitted at the hearing that she received and opened all of the couple's mail during the marriage and was the party typically tasked with financial matters during the marriage. Further, Wife admitted that she had some concerns prior to signing the MDA regarding the property included and Husband's income, but that she signed the MDA regardless.
Both parties testified regarding their view of what parenting arrangement was in the children's best interest. When Wife attempted to have the couple's twelve-year old daughter testify as to her parenting preference, however, Husband objected on the basis that the parenting issues had been previously decided by the trial court's March 25, 2012 order. Wife responded that the March 25, 2012 order was merely a temporary order pending final hearing. Regardless, the child was ultimately not allowed to testify.
The trial court entered a written ruling on September 11, 2013. With regard to the parenting plan issue, the trial court ruled that "the children's best interests will continue to be served by the [parenting schedule adopted by the trial court on Husband's motion for a temporary order]." Husband was ordered to provide his 2012 tax return information within thirty days of the court's order so that support could be calculated. The trial court ruled that Wife would be imputed minimum wage.
The trial court also denied Wife's contempt petitions, stating:
The Court does not find [Husband] in contempt on either of the outstanding Petitions for Contempt, but does Order the parties to divide all remaining personal property which is listed in the [MDA] and which has not yet been divided, within 30 days of the entry of this Order. While not rising to the level of contempt, the Court finds that [Husband] did wrongfully liquidate marital property following the entry of the Final Decree in this matter and Orders [Husband] therefore, to pay [Wife] her share of such property in the amount of Sixteen Thousand and 00/100 Dollars ($16, 000.00) within six (6) months of the entry of this Order, in addition to the remaining undivided accounts listed in the [MDA].
Finally, the trial court denied Wife's request for relief from the final judgment, stating: "The Court further does not find fraud or any other sufficient grounds for setting aside the Final Decree of Divorce in this cause, pursuant to Rule 60, and does therefore deny that Motion."
On October 10, 2013, Wife filed a motion to alter or amend the trial court's judgment pursuant to Rules 59.01 and 59.04 of the Tennessee Rules of Civil Procedure. Essentially, Wife argued that the trial court erred in all respects in its order on September 11, 2013, and that such judgment should be vacated and judgment entered in Wife's favor. To support her argument, Wife pointed to the lack of any findings of fact or conclusions of law to support the trial court's rulings.
On November 18, 2013, Wife filed a notice in the trial court that no child support order had been entered in the matter, despite the trial court's September 11, 2013 order requiring Husband to submit his tax return in order to calculate child support. The trial court held a hearing on Wife's Rule 59 motion on November 13, 2013. A written order was entered denying Wife's motion on November 25, 2013. The order also set Husband's child support obligation at $167.00 per month, based on an income of over $130, 000.00 per year. Wife subsequently appealed.
Wife raises several issues on appeal, which are taken from her brief:
1. Whether the trial court erred in denying recovery related to undivided assets divesting Wife of discovered and unaddressed assets.
2. Whether the trial court erred in dismissing a Rule 60 motion to reconsider the child support issue when Husband allegedly misrepresented his income.
3. Whether the trial court erred in dismissing Wife's contempt claim where Husband allegedly interfered with the distribution of $59, 309.17 in assets ...