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Kibbe v. Kibbe

Court of Appeals of Tennessee, Knoxville

April 28, 2015


Session March 10, 2015

Appeal from the Circuit Court for Washington County No. 30512 Hon. Jean A. Stanley, Judge.

Nicholas D. Bunstine, Knoxville, Tennessee, for the appellant, Christopher Maurice Kibbe.

Judith Fain, Johnson City, Tennessee, for the appellee, Mary Carolyn Kibbe.

John. W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J., joined.



I. Background

Christopher Maurice Kibbe ("Husband") and Mary Carolyn Kibbe ("Wife") were married in 1998. Two children, Dylan ("Son") and Lara ("Daughter"), were born during the marriage. Throughout the marriage, Husband was a commercial pilot, while Wife stayed home to care for the children, specifically Daughter, who was classified as special needs and needed constant care and supervision.

In March 2012, Husband sought a divorce after approximately 14 years of marriage. Husband alleged that he was entitled to a divorce based upon Wife's inappropriate marital conduct and irreconcilable differences. Wife responded by filing a counter-complaint for divorce, alleging that she was entitled to a divorce based upon Husband's inappropriate marital conduct and adultery. The parties each submitted a proposed parenting plan order. Husband requested equal parenting time, while Wife requested designation as the primary residential parent with Husband receiving 120 days of co-parenting time with Son and 80 days of co-parenting time with Daughter.

During the pendency of the hearing on the competing complaints for divorce, Husband was diagnosed with an adjustment disorder with a mixed anxious and depressed mood and was placed on disability. A hearing on the complaints was held over the course of three days in January and February 2014.

Clinical psychologist Steven Lawhon, Psy.D. testified that he met with Husband approximately six times, starting in July 2013. He stated that he diagnosed Husband as suffering from an adjustment disorder with a mixed anxious and depressed mood as a result of the ongoing divorce proceedings, medical issues, and other stressors relating to Husband's family and profession as a pilot. He stated that he submitted his findings to Husband's insurance provider and that Husband was no longer able to serve as pilot based upon his diagnosis. He believed that Husband should recover from the disorder in approximately six months. He recalled that his diagnosis was based upon his interactions with Husband and letters from Husband's other medical providers.

Husband, who was 51 years old at the time of the trial, testified that he had a Bachelor of Science degree and that he completed several post-graduate aviation courses to receive the training necessary to pilot airplanes. He was currently employed by FedEx. He claimed that he was not able to control his monthly schedule, which was provided to him ten days before each month. He explained that he often flew internationally for an approximate 7 to 17 day rotation, which amounted to a 75-hour workweek.

Husband testified that he suffered from high blood pressure, cholesterol, and an injured knee, which would require knee replacement surgery. He had a heart attack in 2006 that rendered him disabled and unable to work for approximately 20 months. In order to resume his position at FedEx, he submitted to an arduous re-application process that included strenuous medical testing. He was required to undergo medical testing every six months to maintain his license. He asserted that his current diagnosis of adjustment disorder was a result of stressors related to his health, the stress inherent in his employment, family finances, their special needs daughter, and the divorce.

Husband testified that Wife was responsible for the family finances and that he agreed to an arduous work schedule because she often complained that they did not have enough income. He asserted that from 2008 through 2011, he received in excess of $200, 000 per year. He related that he deposited his income into their joint checking account but that Wife's spending habits simply exceeded his substantial income. He explained that from 2007 through 2008, he sold property and a business in Florida to cover approximately $70, 000 in credit card debt but that by November 2011, Wife accumulated an additional $90, 000 in credit card debt. He stated that Wife rebuffed his suggestion to consult a credit card counselor and control their spending. He claimed that by 2013, Wife filed for bankruptcy because she had amassed approximately $121, 000 in credit card debt.

Husband testified that he also experienced stress related to his family. He explained that Son was diagnosed with leukemia in 2000 and that they discovered Daughter's special needs when she was born in 2002. He sought a divorce because Wife refused to communicate with him and because with the exception of two occasions, he had not enjoyed a physical relationship with Wife since approximately 2009. He explained that they lived in separate areas of the house when he returned home. He stated that he parented the children, while Wife recuperated from her day-to-day responsibilities.

Husband admitted that he began a relationship with Teresa Schutte in January 2012. He stated that Ms. Schutte was a family friend who lived in Ocoee, Florida. He often visited her in Florida and also traveled with her to Amelia Island, to Charleston, South Carolina, and to Asheville, North Carolina. He also visited with her when he had a layover in Paris. He stated that since 2012, he had likely spent $10, 000 on his relationship with Ms. Schutte. He admitted that Ms. Schutte was his beneficiary on his $1, 800, 000 life insurance policy at one time but that Wife was the current beneficiary.

Husband identified his proposal for the division of the marital property and debts. He acknowledged that he received the 2011 tax refund of approximately $9, 100 and the 2012 tax refund of approximately $10, 500 and that he did not remit any portion of either refund to Wife. He admitted that he was expecting his 2013 tax refund of approximately $10, 100 in a few days and that he intended to spend the money on his current bills in order to remain solvent. He conceded that he received approximately $50, 000 as a result of refinancing the house in March 2012 and that he did not remit any portion to Wife. He also conceded that he received approximately $8, 000 from his father and a $20, 000 personal loan from his retirement while the divorce was pending. He explained that he used the money from the refinancing, his father, and his retirement to pay for living expenses and $75, 037 in home improvements. He agreed that some of the home improvements were paid through other sources, including approximately $31, 600 in debt from a line of credit, a signature loan, and a personal loan. He believed that the debts should be paid from the sale of the house.

Husband identified his affidavit of income and expenses, reflecting expenses of $13, 997.50 per month and a gross income of $12, 750 per month. He stated that since completing his affidavit, his net pay had decreased from $10, 100 to $9, 453 as a result of his placement in a different tax bracket. He acknowledged that some of his expenses would decrease as a result of the divorce and that Wife's car loan with a monthly payment of $514 would be paid in full in approximately six months. He agreed to a spousal support obligation until Wife was able to access his pension benefits at the age of 52, at which time she could recoup approximately $1, 700 per month. He believed that Wife was capable of working and should work to support herself.

Relative to the children, he requested equal co-parenting time. He explained that since October 2013, he and Wife had essentially shared parenting responsibilities with alternating weeks of co-parenting time. He believed that the arrangement had been very successful and that he was capable of addressing Daughter's special needs. He acknowledged that Daughter suffered from seizures, was unable to speak, and relied on an iPad and gestures to communicate. He admitted that he did not require Daughter to use the iPad for communication even though use of the iPad was recommended by her therapists. He also admitted that Wife was more involved in Daughter's therapy and that he was unfamiliar with several of Daughter's current training methods. He acknowledged that he left Daughter in the car on one occasion and that she had wandered away on another occasion while in his care. He insisted that Daughter did not require qualified caregivers. He explained that one simply had to be made aware of her unique needs and given instructions regarding her care.

Wife, who was 48 years old at the time of the hearing, testified that the lack of intimacy in their marriage was a result of her breast reconstruction surgery and a partial mastectomy in 2010 and her complete hysterectomy in 2011. She attempted to initiate a physical relationship with Husband, but he never initiated any form of physical affection. She also scheduled a date night each time he returned home and gave him massages.

Wife testified that Husband knew where she kept the information concerning their finances and that he was free to investigate their spending habits. She also spoke with him every six or eight months about the finances and informed him of their current debt accumulation. She stated that she paid the household bills and Husband's credit card bills before she addressed their other debt. She explained that Husband had filed for bankruptcy before their marriage and that they were attempting to reestablish his credit. She claimed that they opened credit cards in her name as a result of Husband's bad credit history. She asserted that they paid for vacations, household expenses, and her medical procedures with her credit cards. She acknowledged that they spent more than their income and that their spending habits caused stress in their marriage.

Wife claimed that Husband ceased payment on her credit cards in June 2012 and forced her to file for bankruptcy. At that time, she had amassed approximately $121, 000 in credit card debt. She stated that Husband deposited his paychecks into his account and then transferred money to their joint account to cover minimal living expenses for her and the children. He also provided her with $250 and Wal-Mart gift cards to pay for groceries. In contrast, she claimed that he spent approximately $27, 000 in 2012 and $26, 000 in 2013 on travel and entertainment with Ms. Schutte.[1]

Wife testified that Husband was home for approximately three days a month in 2011 and 2012 and that he was home for five days a month in 2013. She claimed that Husband never worked with Daughter in a therapeutic way and that he only began the alternating weekly co-parenting schedule in November 2014. She conceded that he had met with Daughter's therapists and that he enjoyed a loving relationship with Daughter.

Wife testified that Daughter, who was 11 years old, was developmentally and intellectually disabled. She stated that Daughter was unable to communicate and in need of constant supervision. She related that she spent a substantial amount of time each day researching ways to enrich Daughter's life. She co-founded the first parenting network for children like Daughter and was on the board of a similar organization. She worked with Daughter to develop her use of the iPad for communication purposes and with Daughter's therapists to reinforce the current training methods. She claimed that Husband did not provide the constant supervision and consistency that Daughter required. She explained that Daughter was often unsupervised while with Husband and showed signs of regression when she returned from visits with him.

Wife identified her income and expense statement, which reflected an income of $100 per month and expenses of $7, 223 per month. She acknowledged that she submitted an income and expense statement in bankruptcy court that reflected an income of $190 per month and expenses of $4, 010 per month.

Wife stated that she was licensed to teach in Florida and that she had also worked in medical billing. She explained that her license to teach and medical billing certificate had since expired. She stated that she worked for approximately one year since Daughter was born. She explained that Husband, his parents, or a friend from church supervised Daughter while she worked. She estimated that adequate supervision for Daughter would cost approximately $25 per hour. She had applied for employment with the Johnson City School System and also periodically served as a substitute teacher. Her ability to work was limited because of Daughter's need for constant supervision. She claimed that she could not afford adequate childcare even if she were to find ...

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