Session Date June 10, 2015
Appeal from the Chancery Court for Henry County No. 22240 Donald P. Harris, Judge
Catherine B. Clayton, Jackson, Tennessee, for the appellant, Tony Neil Gladwell, Jr.
W. Brown Hawley, II, and George Robert Whitfield, III, Paris, Tennessee, for the appellee, Heather Anne Gulish Gladwell.
Arnold B. Goldin, J., delivered the opinion of the Court, in which Kenny Armstrong, J., joined and J. Steven Stafford, P.J., W.S., filed a separate opinion concurring in part and dissenting in part.
ARNOLD B. GOLDIN, JUDGE
This is a divorce case. Heather Anne Gulish Gladwell ("Wife") and Tony Neil Gladwell, Jr. ("Husband") were married in 1997 in Philadelphia, Pennsylvania. Wife was 28 years of age at the time of the marriage; Husband was 26. They are both college graduates – Husband is an engineer and Wife is an orthopedic surgeon. The parties moved from Pennsylvania to Wife's hometown in Henry County, Tennessee, in 2003. They have three minor children.
In January 2013, Wife filed a complaint for divorce on the grounds of inappropriate marital conduct and irreconcilable differences. In her complaint, Wife prayed for "a reasonable division" of the parties' property "with due consideration to [Wife] for her having provided all or a majority of the income of the marriage." She also prayed for the parties' debt to be divided equally, for alimony in solido in the division of the martial estate, and to be designated primary residential parent of the parties' children with parenting time divided equally.
In February 2013, Husband answered and counter-claimed for divorce on the grounds of inappropriate marital conduct, adultery, and irreconcilable differences. He prayed to be designated primary residential parent of the parties' children and for child support. Husband also prayed for an equitable division of the parties' property and debt, for alimony pendente lite, and for "a reasonable amount of alimony upon final hearing of [the] cause." Wife answered Husband's counter-complaint in March 2013. Wife admitted to Husband's allegations with respect to grounds for divorce but denied that he should be designated primary residential parent of the parties' children.
Acrimonious proceedings ensued, and in October 2013 the trial court ordered the parties to participate in mediation. The parties eventually entered an agreed permanent parenting plan that designated Husband primary residential parent for the parties' youngest child and Wife primary residential parent for the two older children. The parenting plan provided for alternating parenting time on a week-to-week basis and allocated equal parenting time to the parties with respect to all three children. The parenting plan provided that Wife would pay child support to Husband, but did not indicate a child support amount. Rather, the parties' incomes were left "to be determined" by further proceedings. With respect to the federal income tax deductions permitted for the children, the parenting plan provided:
Beginning 2014, so long as three children can be claimed, Mother shall claim two children in even years and one child in odd years, and Father shall claim two children in odd years and one child in even years. When there are two children to claim, the parties shall each claim one child and when there is one child to claim, the parties shall alternate. Parties agree to have their respective tax returns analyzed and, in the event it would benefit Mother to claim all children, then Mother agrees to pay Father's tax benefit from his return to him and, after deducting this payment, split remaining tax benefit Mother would receive by claiming all the children equally between the parties.
The [Mother] may claim the exemptions for the child or children so long as child support payments are current by the claiming parent on January 15 of the year when the return is due. . . .
The [Mother and Father] will furnish IRS Form 8332 to the parent entitled to the exemption by February 15 of the year the tax return is due.
Following a five-day hearing in February 2014, the trial court awarded Husband a divorce on stipulated grounds by order entered February 27, 2014. The trial court entered memorandums on March 27 and April 10, and a judgment incorporating the memorandums on May 12, 2014. The trial court determined that Wife's interest in her medical practice at Henry County Orthopaedic was a gift from her father and is her separate property. It valued the marital estate at $2, 525, 670 (net), including Wife's interest in Gulish-Gladwell LLC, which owns a medical building. The trial court awarded Wife marital property valued at $1, 657, 450, and awarded Husband martial property valued at $868, 220. It "equalized" the division of marital property by awarding Husband a judgment against Wife in the amount of $394, 615. The trial court ruled that Wife may pay the judgment over a period of 20 years at six percent interest, compounded monthly - with monthly payments in the amount of $2, 827.14. The trial court determined that Wife's income was $43, 973 per month. It awarded Husband, who has not worked full-time outside the home since 2003, rehabilitative alimony in the amount of $2, 000 per month for 36 months and attorney's fees in the amount of $60, 000 as alimony in solido. The trial court set Wife's child support obligation at $3, 956 per month. It deviated downward from the child support guidelines with respect to Husband's child support obligation "so that Husband's ability to earn will not be considered during the same 36 month period [.]" The trial court also ruled that Wife would be permitted to claim the applicable dependency exemption for the children for federal tax purposes. On June 11, 2014, Husband filed a timely notice of appeal to this Court, and Wife filed a motion to stay the trial court's judgment with respect to alimony in solido and the "equalization" award to Husband. The trial court denied Wife's motion to stay by order entered August 4, 2014.
Husband presents the following issues for our review, as stated in his brief:
1) The trial court erred in failing to award alimony in futuro to maintain Mr. Gladwell's standard of living during the marriage where Dr. Gladwell has the ability to pay.
2)The Husband should be awarded alimony in solido to cover his appeal costs.
3)The division of property is inequitable because the trial court failed to consider the ability of the parties for future acquisitions, and failed to include in its "50/50" division the value of Dr. Gladwell's medical practice and other assets received by Dr. Gladwell, Dr. Gladwell's dissipation of assets, and Mr. Gladwell's loan and credit card debt.
4) The trial court erred in disregarding Dr. Gladwell's admission on her financial statement, as well as the valuation by the first expert appraiser hired by Dr. Gladwell, in valuing her 49% interest in the medical building owned by her and her father (Gulish-Gladwell partnership).
5)The trial court erred in sua sponte awarding the federal tax exemption to Dr. Gladwell where the permanent parenting plan previously entered had resolved that issue and neither any motion to modify nor any proof to modify the existing PPP's allocation of the tax exemptions was before the court.
Wife raises four additional issues in her brief:
1) Whether the trial court erred in failing to adjust the award of marital property to account for marital debts paid by each party after the divorce complaint was filed.
2) Whether the trial court erred in failing to adjust the award of marital property to account for Husband's dissipation and failure to account for marital assets.
3)Whether the trial court erred in finding that Wife's minority interest in Gulish Gladwell, LLC is marital property.
4)Whether the trial court erred in awarding $60, 000 in attorney's fees to Husband.
Standard of Review
Appellate review of the findings of fact of a trial court sitting without a jury is de novo upon the record with a presumption of correctness unless the evidence preponderates otherwise. In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010) (citation omitted); Tenn. R. App. P. 13(d). Insofar as a factual finding is based on the trial court's assessment of witness credibility, we will not reverse that finding absent clear and convincing evidence to the contrary. In re: M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). No presumption of ...