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Brainerd v. Brainerd

Court of Appeals of Tennessee, Nashville

November 30, 2016

BILL FRANK BRAINERD
v.
ALISA RHEANNE BRAINERD

          Session January 26, 2016

         Appeal from the Circuit Court for Sumner County No. 2013CV715 Jane W. Wheatcraft, Judge

         In this appeal arising from the parties' divorce, the husband challenges the trial court's valuation of his interest in a limited partnership, division of the marital estate, awards of transitional alimony and alimony in solido, child support order, and adoption of the wife's proposed permanent parenting plan. The husband also appeals the trial court's denial of his motion for a restraining order. We conclude that the evidence does not preponderate against the trial court's valuation of the husband's interest in the limited partnership. We also conclude that the trial court did not err in denying Husband's motion for a restraining order. However, because the trial court failed to provide sufficient findings of fact and conclusions of law, we are unable to effectively review the remainder of the issues raised by the husband on appeal. Therefore, we vacate the judgment of the trial court with regard to these remaining issues and remand for further proceedings in accordance with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part, Affirmed in Part, and Case Remanded

          Tarsila Crawford, Nashville, Tennessee, for the appellant, Bill Frank Brainerd.

          Bruce N. Oldham, Gallatin, Tennessee, for the appellee, Alisa Rheanne Brainerd.

          W. Neal McBrayer, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Richard H. Dinkins, J., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I. Factual and Procedural Background

         On June 24, 2013, after fifteen years of marriage, Bill Frank Brainerd ("Husband") filed for a divorce from his wife, Alisa Rheanne Brainerd ("Wife"), in the Circuit Court for Sumner County, Tennessee. Wife filed a counterclaim for a divorce. Both parties requested that the court equitably divide their marital property and debt. Wife also requested alimony. The marriage produced two children, aged fourteen and eleven. Husband agreed that Wife should be named primary residential parent for the children and only requested that the court establish reasonable visitation.

         A. Testimony at the Hearing

         The court held an evidentiary hearing on May 29, 2014. At the outset, Husband stipulated that Wife was entitled to a divorce based on his adultery. Thus, the hearing focused on the valuation and division of marital property, the terms of the parenting plan, child support, and alimony.

         At the time of the hearing, Husband was forty-five, and Wife was forty-nine. During their fifteen-year marriage, the parties had accumulated a modest amount of assets and minimal debt. They each had retirement accounts, cars and personal property. Husband also had a one-percent interest in a limited partnership, SabeRex Group, Ltd. In addition, the couple jointly owned a home and checking and savings accounts. The marital debt included a mortgage, a car note, and a small amount of credit card debt.

         The parties could not agree on the value of Husband's interest in SabeRex. Husband testified that he was prohibited by the terms of a confidentiality agreement from disclosing the value of the partnership but tried to assure the court that his interest had little value. Wife, on the other hand, testified that she overheard Husband admit that the partnership was worth between five and seven million dollars. Wife also conducted her own research into the SabeRex's worth, which she claimed corroborated Husband's admission. Based on her research and Husband's income from the interest during the marriage, she valued the interest at $54, 000.

         Another source of contention was Wife's earning capacity. Both parties were college educated and worked full-time at the beginning of the marriage. After the birth of their first child, however, they agreed Wife would stay home and raise their children. Consequently, Wife was not employed outside the home between 2001 and 2007. From 2008 through the time of the hearing, Wife worked one day per week as an ultra-sonographer at a nearby medical center.

         Wife testified that she wanted to continue working part-time until their youngest child graduated from high school. She conceded that no physical or mental disability prevented her from seeking full-time employment. After the divorce, she planned to increase her work hours while remaining a part-time employee. To avoid incurring child care expenses, she planned to work the additional hours during Husband's parenting time. While acknowledging Wife had been a stay-at-home mother for the previous eleven years, Husband claimed she was capable of working full-time after the divorce. According to Husband, Wife could return to full-time employment within six to eight months after the divorce.

         Wife explained that, even though they were in school, the children still needed her care. The son had been diagnosed with "intermittent exotropia, " which involved a disconnect between his visual reception and his brain reception. He completed nine months of vision therapy, and while he had recently been more successful in school, the condition had not been cured. The condition most notably affected his progress in math, necessitating a weekly tutor. Wife testified that the son also had difficulty completing homework, sometimes spending two to three hours on homework per night.

         The parents disputed the amount of the expenses for the children's extracurricular activities and whether it would be appropriate to incorporate these amounts into Husband's child support payment. Since finishing therapy, the son had developed interests in hip hop dance and basketball. Wife testified that the son loved participating in these activities and consequently had developed increased self-confidence. The daughter was heavily involved in competitive cheerleading. In the past, she had been part of a traveling competition team. At the time of the hearing, the daughter had been accepted onto her high school cheerleading squad. Husband and Wife disagreed over whether being a member of the high school squad would prevent her from participating in the traveling squad.

         Because of the substantial disparity between the two parties' incomes, Wife requested alimony. For the previous six or seven years, Husband had worked in sales. Husband's gross monthly income was $10, 342.15. By contrast, Wife's gross monthly income was $1, 603.75. Although Husband's monthly income would easily cover his estimated, post-divorce monthly expenses of $2, 700, Wife testified she needed an additional $2, 096.05 to make ends meet.

         The parties' dispute with regard to the residential parenting schedule focused on two issues. First, Husband asked the court to award him one overnight stay with the children during the week. Wife objected, claiming Husband would not help the children with their homework. Second, Husband opposed a restriction in Wife's proposed parenting plan that would prevent female children from staying overnight at his home when he was exercising his parenting time. Wife asserted that the restriction was justified, although she did not believe Husband would behave inappropriately with their daughter. According to Wife, Husband had a history of sexual liaisons with women he met through internet websites, and Husband had "used the children to make sexual connections."

         B. Circuit Court Ruling

         On July 2, 2014, the court entered a final decree of divorce, which incorporated by reference a previously filed memorandum opinion. The court granted Wife a divorce on the ground of adultery. The court awarded each party their respective retirement accounts and any requested personal property. Husband also received his interest in SabeRex. The court ordered the parties to pay off their marital debt, other than the mortgage, from their joint savings account and to divide the remaining funds equally. With the joint checking account, the court awarded two-thirds to Wife and one-third to Husband.

         The court named Wife the primary residential parent of the children, adopted Wife's proposed permanent parenting plan, and awarded Husband visitation every other weekend and Tuesdays for three hours. The court set child support at $2, 476.25 per month, including an upward deviation for the expenses associated with the children's extracurricular activities.

         The court awarded the marital home to both parties with the proviso that Wife would remain in the home with the children until the youngest child graduated from high school. After the youngest child graduated, the house would be sold, and the proceeds divided equally between Husband and Wife. While Wife remained in the marital home, the court ordered Husband to make the monthly mortgage payment of $1, 035.82 as transitional alimony. The court awarded Wife an additional $200.00 per month as alimony for two years. The court also ordered Husband to pay Wife's attorney's fees.

         Both Husband and Wife filed motions to alter or amend. Wife also filed a motion for civil contempt based on Husband's failure to pay child support as ordered. In response, Husband filed a motion to reduce child support and to restrain Wife from making derogatory remarks about him to the children and on social media.

         After a hearing on the pending motions, the court entered a supplemental memorandum on January 23, 2015, intended to "correct[] deficiencies in the original Order." In the supplemental memorandum, among other things, the court valued the marital home and Husband's interest in SabeRex and awarded the home to Wife in fee simple along with the responsibility for paying the mortgage. As a consequence of the change in the division of the marital estate, the court reconsidered the previous transitional alimony award and ordered Husband to pay Wife $1, 500 per month in transitional alimony until the youngest child graduated from high school. The court denied Wife's motion for contempt and Husband's motion for a restraining order and to reduce child support. The court's supplemental ruling was incorporated in an Amended Final Decree of Divorce, entered on March 23, 2015.

         II. Analysis

         Husband raises numerous issues on appeal. First, he challenges the court's valuation of his interest in the limited partnership, the division of the marital estate, and the award of transitional alimony and attorney's fees to Wife. Second, Husband raises several issues with the award of child support, including the calculation of Wife's monthly gross income, the upward deviation for special expenses, and the allowance of various credits on the child support worksheet. Third, he contends the court erred in adopting Wife's proposed permanent parenting plan. Finally, Husband asserts the trial court erred in denying his motion for a restraining order. Wife requests this Court award her attorney's fees incurred on appeal.

         A. Standard of Review

         In a non-jury case, 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). Our review of questions of law is de novo, with no presumption of correctness. Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).

         Most of the issues raised by Husband implicate matters within the trial court's discretion. See Armbrister, 414 S.W.3d at 693 (details of permanent parenting plans); Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (nature, amount, and duration of alimony awards); Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007) (division of marital property); Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005) (child support decisions). Our review of discretionary decisions is limited. Beard v. Bd. of Prof'l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009). We do not "second-guess the court below" or "substitute [our] discretion for the lower court's." Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Nonetheless, a lower court's discretionary decisions do not escape appellate scrutiny. Id. In reviewing discretionary decisions, we consider "(1) whether the factual basis for the decision is properly supported by evidence in the record, (2) ...


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