Session November 19, 2014
Appeal from the Circuit Court for Davidson County No. 11D3549 Philip E. Smith, Judge.
J. Todd Faulkner, Nashville, Tennessee, for the appellant, Michael David Olson.
Lawrence J. Kamm, Nashville, Tennessee, for the appellee, Jennifer Carlin Beck.
Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, P.J., M.S., and W. Neal McBrayer, J., joined.
ANDY D. BENNETT, JUDGE.
Factual and Procedural Background
Michael David Olson ("Husband") and Jennifer Carlin Beck ("Wife") married in June 2011. They have one child, a boy, born in September 2009. Husband filed a complaint for divorce in December 2011, but never had the complaint served upon Wife. On April 24, 2012, Wife obtained an ex parte order of protection against Husband. Shortly thereafter, on May 7, 2012, Husband filed and served upon Wife a first amended complaint for divorce asserting grounds of irreconcilable differences and inappropriate marital conduct. Wife answered and counterclaimed for divorce on the grounds of irreconcilable differences and inappropriate marital conduct.
The hearing on Wife's petition for an order of protection was continued until June 4, 2012. At that time, the petition for an order of protection was dismissed at Wife's request. On June 15, 2012, the parties filed a marital dissolution agreement ("MDA") and permanent parenting plan ("PPP") executed by both parties. On August 22, 2012, Wife filed a motion to set the case for final hearing.
On August 30, 2012, Husband, through new counsel, filed a motion to set aside the MDA on the grounds that, under the MDA, Husband was entitled to receive possession of the residence on August 23, 2012, in "good repair, " but when he took possession he had to make a number of repairs to the residence. According to Husband, Wife breached the contract, and he did not receive the benefit of the bargain. Wife opposed Husband's motion and filed a petition to enforce the MDA. These matters were heard on January 9, 2013. In its order, entered on January 22, 2013, the trial court determined that, if there was any damage to the residence, Husband had recourse in a suit for damages for breach. The trial court found that there was no clear and convincing evidence of a mutual mistake. Husband's motion was denied. The trial court found the MDA to be an enforceable contract.
The final hearing took place on May 22, 2013. Husband stated that, within four months of the parties' marriage, he had proof of Wife's infidelity. Tensions were high. Husband briefly described an incident that occurred when he was giving Wife a ride to work at Vanderbilt and they were arguing and poking at each other. Wife reported him for domestic violence and included their two-year-old son on the petition for an order of protection even though the child had no involvement in the incident. As a result, Husband went 52 days without seeing his son.
At the trial, Husband testified that he was repudiating the MDA. The marital residence was supposed to be returned to him in "broom-clean" condition, but Husband testified that there were problems with the house when he took possession. Wife's counsel objected because he argued that these matters had been resolved at the earlier hearing. Husband's counsel made an offer of proof concerning all of the repairs that Husband had to make to the house due to damage caused by Wife.
The trial court stated:
I will state for the record that this was tried. We tried this a half a day, looking at the contractual defenses that were available to Mr. Olson, which I found were none. I think the only real defense that was asserted was-actually two. I think there was a lack of meeting of the minds for the benefit of the parties. While Mr. Olson may have an action of breach, he does not have an action under enforcement of these contracts as far as I'm concerned. Looking at the Barnes case, which was decided by the Court of Appeals, I decided this very issue, and I decided it that day. I do consider this a backdoor attempt to get back to that issue. With that said, a refusal of an offer of proof I think is reversible error, in and of itself.
The court then accepted rebuttal witnesses on the offer of proof. John Milillo, a friend of both parties who had done repairs on the home, testified about the condition of the marital home and repairs he made there. Corey Beck, Wife's brother, was called as another rebuttal witness on the same issues. Mr. Beck lived with Wife when she moved out of the marital home. The offer of proof was then completed.
Husband returned to the stand as a witness to testify about the PPP. He stated that he repudiated the PPP because he did not believe it was in the best interest of the child. In Husband's view, it did not allow him sufficient time with the child. According to Husband, he and Wife had a verbal agreement to share parenting time equally, and that was what he wanted the trial court to order.
On cross-examination, Husband admitted that he had other income ($300 per month) that he had not disclosed as part of the child support calculation. He asserted that he could provide documentation of his child support payments that were due twice per month.
Wife's first witness was Cheryl Bradley, a Vanderbilt police officer, who testified about the events of April 24, 2012, the date of the domestic disturbance that resulted in the order of protection against Husband. Officer Bradley talked to Wife on the scene and then went to Husband's place of work and interviewed him.
Wife testified next. She stated that the child was born in September 2009 and the parties did not marry until June 2011. Wife averred that she was the child's primary caregiver and that Husband was involved in his care. Wife believed that the PPP was in the child's best interest and stated that she had never prevented Husband from seeing the child during his scheduled parenting time. Wife presented a chart showing the dates when Husband owed child support payments and when he had paid. According to this chart, Husband had only made seven payments, or $3, 720.50, out of a total of $10, 329.20 owed.
Wife gave her version of the events leading up to the petition for an order of protection. She further admitted to a short extramarital affair. Wife also testified about her dancing career. She stated that there were only three shows that year, and all of them fell on weekends when she did not have the child. Previously, if a show or a rehearsal fell on a weekend when she had him, she just would not go.
Wife testified that Husband damaged the marital residence: "He busted the glass in the basement door. He punched walls. He tore the railing down outside on the deck." She stated that this damage occurred in November 2011, a night when the police were called.
On cross-examination, Wife denied that they had agreed to a 50/50 shared ...