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Dick v. Dick

Court of Appeals of Tennessee, Nashville

July 14, 2015

CATHERINE MARIE SCHMALZER DICK
v.
DOUGLAS CHARLES DICK

Session Date: April 07, 2015

Appeal from the Chancery Court for Williamson County No. 39884 Robbie T. Beal, Judge

Deana C. Hood and Casey Ashworth, Franklin, Tennessee, for the appellant, Douglas Charles Dick.

Russ Heldman, Franklin, Tennessee, for the appellee, Catherine Marie Schmalzer Dick.

Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

KENNY W. ARMSTRONG, JUDGE

I. Factual History and Procedure

Appellant Douglas Charles Dick ("Husband") and Appellee Catherine Marie Schmalzer Dick ("Wife") were married in October 2001. At the time of divorce, the parties had one child age eleven. During the marriage, Husband worked as an accounting manager earning an annual gross income of approximately $81, 000. At the time of trial, Husband was 48 years old and was generally in good physical health. Although she had been a stay at home mother for most of the parties' marriage, at the time of the divorce, Wife was working as a part-time manager of a café, earning approximately $9.00 per hour. Wife is also the beneficiary of a trust fund, which has a value in excess of $1, 000, 000. In 2012, Wife had income from the trust fund of approximately $110, 000, which consisted of interest income, dividends, and capital gains.

Prior to filing her complaint in this case, Wife filed a Petition for an Order of Protection concerning an incident that occurred on May 15, 2011. Wife alleged in her petition that Husband choked her and threw her out the back door. Husband denied that he "choked" Wife, but did admit that, during the argument, he put his hands on her neck and walked her to the back door. On May 16, 2011, Husband was charged with domestic assault arising from this incident.

Wife's complaint for legal separation was filed on June 20, 2011. On July 27, 2011, the parties entered an agreed order concerning the order of protection, possession of the marital residence, temporary support, and parenting time for Husband. As is relevant to this appeal, the parties agreed that neither would drink alcohol pending further orders of the court.

On August 8, 2011, Husband filed an Answer and Counter-Complaint for Divorce. On September 26, 2011, the parties entered a second agreed order, wherein they agreed that neither party would "drink alcohol during their parenting time with the minor child." They further agreed that "neither party will drink alcohol within twelve (12) hours prior to their parenting time with the minor child."

On February 28, 2012, Wife filed a motion requesting the trial court to require Husband to sign documents allowing the marital residence to be put on the market for immediate sale. In response, Husband requested that the trial court enforce the parties' agreed order and maintain the status quo pending a final hearing. At the time, Wife and the parties' child were living in the marital residence. Wife was paying the mortgages on the home, and Husband was paying $800 per month to Wife toward household expenses. On April 10, 2012, Wife filed another motion requesting that the marital residence be put on the market for sale and that Husband be required to sign all necessary documents.

On October 31, 2012, the parties entered into another agreed order dividing the majority of the marital property. With regard to the marital residence, the agreed order stated:

REAL PROPERTY: The parties own the real property located at 1096 Cedarview Lane, Franklin, Williamson County, Tennessee 37067 as joint tenants by the entirety. Said property is currently listed with Kathy Garrett of Zeitlin Realtors for a sale price of $497, 900. By December 1, 2012, Husband shall, at his sole expense, refinance all the indebtedness encumbering this property and remove Wife's name from the first and second (HELOC) mortgages.
Upon the closing of said refinance, Wife shall execute a quitclaim deed transferring all her right, title and interest in said property to Husband. Said quitclaim deed shall be prepared by Husband at Husband's expense. On or before December 1, 2012, Husband shall pay Wife the sum of $200, 000.00 cash, lump sum, which represents her premarital, separate property inheritance interest, and an additional amount of $15, 000 which represents an equitable marital interest in and to said property, for a total amount of $215, 000. The property shall be removed from the market for sale for the purpose of the refinancing process. In the event of said refinance by December 1, 2012, Husband shall not be responsible for any fees or costs charged by Kathy Garrett or Zeitlin Realtors, under the current listing agreement. Upon refinance, Husband shall be solely responsible for paying any and all new mortgage indebtedness encumbering said real property. In the event of said refinance by December 1, 2012, Wife and the minor child shall vacate the residence and property by December 15, 2012. In the event Husband is unable to refinance by December 1, 2012, the marital residence shall be placed back on the market for sale with, Kathy Garrett of Zeitlin Realtors, at a price suggested by the realtor, and listed in accordance with the Order of September 1, 2012.
In the event the property must be sold, and after payment of the mortgage and HELOC indebtedness, realtor's fees and necessary closing costs, Wife shall receive the first $215, 000 and Husband shall receive the next $52, 000. Thereafter, Husband will receive any remaining net proceeds from sale as part of a division of marital property, which shall be charged to Husband as marital property at a final hearing in this cause. Pending (1) Husband's payment to Wife of $215, 000 and the refinance and removing of her name as required herein or (2) the closing of the sale of the real property, whichever occurs first, Husband shall continue to pay Wife the sum of $800.00 per month as reimbursement to maintain his portion of his obligation concerning the mortgage indebtedness, according to the Order of September 11, 2012.

On December 19, 2012, Wife filed an emergency application for an immediate order requiring Husband to respond to an offer that had been made on the marital residence. The offer was $10, 000 lower than the asking price, and required the parties to pay $8, 500 in closing costs. Husband's attorney, Deana Hood, was recovering from a medical procedure and was unavailable to appear in court for the hearing on Wife's emergency application. Husband was given the choice by the trial court to accept the trial court's ruling allowing the sale of the residence, or Husband could accept representation by Ms. Hood's husband, a licensed attorney. Husband chose to accept representation from Ms. Hood's husband. The trial court ultimately ruled in favor of Wife, and, on December 20, 2012, ordered Husband to sign, by noon that day, the written offer to purchase the marital residence.

Although the trial court acknowledged that alimony was not appropriate in this case, in the final decree of divorce, the trial court nonetheless ordered Husband to pay Wife's attorney's fees in the amount of $25, 000. Five thousand dollars was awarded for the criminal contempt petition filed by Wife, and the remaining twenty thousand dollars was awarded due to the acrimonious nature of the divorce and in consideration of the "court file dealing with the sale of the marital residence." Additionally, the trial court ordered Husband to pay Wife's COBRA benefits for three months.

Concurrently with the final decree of divorce, the trial court entered a permanent parenting plan awarding Wife primary residential parent status. Husband was granted 120 days of parenting time, and Wife received 245 days. For purposes of child support, the trial court determined that Husband's gross income was $6, 827.11 per month. The court found that "Mother has the ability to earn, both with employment as well as proceeds from her investments, $6, 827.11 per month. Both parties' incomes should be equal at that amount for child support purposes in the parenting plan, based upon the days and income provided." Although the parenting plan required Wife to consult with Husband, it granted Wife final decision making authority with regard to the child's education, non-emergency healthcare, and extra-curricular activities. Additionally, Husband was ordered to take the parties' child to her extra-curricular activities during his parenting time. The parenting plan included a paramour clause prohibiting "either party from having any overnight guests of the opposite sex to whom they are not related while the minor child is present." The final decree of divorce also found Husband in criminal contempt for violating an interim agreed order that prohibited the parties from drinking alcohol during their respective parenting time.

II. Issues

The following issues are presented for appeal by Husband:

1. Did the Trial Court abuse its discretion in ordering Husband to sign a contract for the sale of his property and to convey his property without the benefit of due process?
2. Did the Trial Court abuse its discretion by refusing to allow Husband to exercise the first option to purchase the marital residence prior to the acceptance of any listing or offering price by a potential buyer?
3. Did the trial court err in awarding Wife COBRA benefits for three months?
4. Did the trial court err in awarding attorney's fees to Wife in the amount of $25, 000?
5. Did the trial court err in calculating Wife's income for child support purposes by failing to include earned and unearned dividends in her total income?
6. Did the trial court err in failing to maximize the possible participation of both parents pursuant to TCA §36-6-106(a) in making its determination regarding parenting time?
7. Did the trial court err in granting Mother sole decision making authority with regard to the child's education, non-emergency healthcare, and extra-curricular activities and in forcing Husband to take his minor child to extracurricular activities during his parenting time?
8. Did the trial court err in ordering that neither party shall have any overnight guests of the opposite sex to whom they are not related while the minor child is present?
9. Did the Trial Court err in finding Husband in criminal contempt?
The following issues are presented for appeal by Wife:
10.Did the trial court err in awarding Wife attorney's fees in the amount of only $25, 000?
11.Did the trial court err in setting the amount of the bond for stay on appeal at a combined total of only $12, 500?
12.Should Wife be awarded her attorney's fees and expenses on appeal?

III. Standard of Review

Because this case was tried by the trial court, sitting without a jury, our review of the trial court's factual findings is de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review the trial court's resolution of questions of law de novo, with no presumption of correctness. Kendrick, 90 S.W.3d at 569.

IV. Analysis

A. Sale of the Marital Residence

Concerning the sale of the marital residence, the final judgment of divorce states, in relevant part, that:

The former marital residence . . . has been sold, with Wife receiving $200, 000 from said sale as her separate property and $15, 000 from said sale as her marital property, and with Husband receiving $52, 000 from said sale as his separate property and $13, 900.48 from said sale as his marital property; and:
Husband has gone through significant steps to get the marital residence refinanced but there is no basis why Wife would have had to abide or wait for conditions for refinance to be satisfied; Wife worked within her legal rights in previously requesting the Court to sell the martial residence and there is no reason for the Court to second-guess or step back in and attempt to remedy those particular issues in equity; the Court, through the Honorable Timothy Easter, Chancellor, has already found the sale of the material residence was appropriate at a fair price; further, taking the foregoing things in context, Wife, through her actions in mandating or requiring the sale that was anticipated by the Agreed Order, did not dissipate any property and there is no reason for the Court to award Husband any additional equity from residence that he may have lost through Wife asserting her rights; and therefore all of Husband's claims concerning this issue are denied.

Husband raises two concerns regarding the sale of the marital residence. First, Husband questions whether the trial court abused its discretion in ordering him to sign a contract for the sale of the property and ordering him to convey his interest in the property without the benefit of due process. Husband also questions whether the trial court abused its discretion by refusing to allow him to ...


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