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Fuller v. Fuller

Court of Appeals of Tennessee, Knoxville

December 21, 2016


          Session October 18, 2016

         Appeal from the Chancery Court for Bradley County No. 2014-CV-272 Jerri S. Bryant, Chancellor

         This appeal stems from a divorce action involving, inter alia, issues of proper valuation of a marital asset, child support, and alimony. The trial court found that the "trail" income from the father's financial planning business was a divisible marital asset, valuing it according to the evidence presented. The trial court set child support and alimony based on its determination of the father's income as an average of the prior two years' gross revenues from his business. The father has appealed. We determine that the trial court properly classified and valued the father's trail income from his business. We also determine, however, that the trial court erred by including in the father's income, for child support and alimony purposes, the amount of the trail income distributed as a marital asset. We vacate the trial court's determination regarding the amount of child support and alimony to be paid by the father. We remand this matter for a proper determination regarding the father's income, as well as an appropriate calculation of child support and determination of alimony in favor of the mother resulting therefrom. We determine the father's issue regarding the allocation of days in the permanent parenting plan to be moot. We affirm the trial court's judgment in all other respects. We decline to award attorney's fees on appeal to either party.

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

          Joshua H. Jenne, Cleveland, Tennessee, for the appellant, Roger Darnell Fuller.

          James F. Logan, Jr., Cleveland, Tennessee, for the appellee, Erin Alford Fuller.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.



         I. Factual and Procedural Background

         The parties, Erin Alford Fuller ("Mother") and Roger Darnell Fuller ("Father"), wed on November 12, 1988. Following twenty-six years of marriage, Mother filed for divorce on December 4, 2014, in Bradley County Chancery Court ("trial court"). Two children were born of the marriage: a daughter, R.F., who had attained the age of majority by the time of trial, and a son, K.F., who was seventeen years of age at that time. The trial court conducted a bench trial in this matter over the course of two non-consecutive days on November 18, 2015, and December 3, 2015.

         The proof demonstrated that both Mother and Father worked outside the home during the marriage. Mother testified that she graduated from "X-ray school" in 1992. She was employed for several years as an X-ray technician, earning a maximum of approximately $27 per hour. Mother received her highest income in that profession in 2011, when she earned nearly $50, 000. Due to her concerns regarding future job stability, Mother determined that she desired to pursue a career as a registered nurse. She accordingly attended and completed nursing school, passing her board examination on June 19, 2015. At the time of trial, Mother was working full time as a registered nurse, earning $22 per hour. Mother testified that she believed her earning potential as a nurse would increase in the future.

         Father worked in the field of petroleum engineering during the early years of the marriage, with his highest income in that industry reaching approximately $100, 000 per year. When the parties moved to Tennessee in 2001, Father completed coursework and passed an examination to become a certified financial planner. Thereafter, Father worked for Morgan Stanley for two years before deciding to strike out on his own. Father testified that he was currently employed in his own financial planning practice, Legacy Investments ("Legacy"), which is a sole proprietorship. Legacy had no employees, staff, or partners. According to Father, he made no initial investment to start Legacy other than to purchase a desk and a computer. Father indicated that his practice was affiliated with a broker dealer, LPL Financial.

         Father further explained that he typically receives two types of income from his employment. First, Father earns direct commissions from the sale of financial products. Second, he earns resulting income from financial products that he has previously sold and continues to manage, commonly referred to as "trail" income. According to Father, the trail income he receives from funds and accounts managed for clients constitutes the majority of his income. For example, in 2014, Father's total revenue from Legacy was $270, 000, which was comprised of $50, 000 in direct commissions and $220, 000 in trail income.

         Since 2006, Father had operated Legacy from a commercial office building on Ocoee Street. The parties purchased the office building for $316, 000 and acquired the title as tenants by the entirety. Thereafter, Legacy paid rent to Father and Mother in the amount of $3, 000 per month for the use of office space in the building. Mother and Father also received rental income from office space leased by another tenant.

         The parties' son was primarily residing with Mother in the former marital residence at the time of trial. By agreement, the parties had been allowing K.F. to choose the parent with whom he wished to spend the night. While Mother related that K.F. spent one or two nights per week with Father, Father likewise explained that K.F. spent "a couple" of nights per week with him. At the conclusion of trial, Mother's counsel stated that the parties had no dispute regarding the time K.F. spent with Father annually, characterizing it as "approximately a hundred days."

         Following the bench trial, the trial court entered a final judgment of divorce on January 7, 2016. Concerning real estate, the court awarded Mother ownership of the marital residence and awarded Father the office building on Ocoee Street. Following its equitable division of other marital assets and debts, the court determined that Father's trail income generated by his ongoing management of his clients' accounts was also a divisible marital asset separate and apart from any goodwill of the business. The court valued this asset at $400, 000, awarding Mother a judgment for one-half of that amount. The court ordered that Father pay Mother $2, 000 per month until such judgment was paid.

         The trial court determined that Mother should be the primary residential parent for K.F. The court also entered a permanent parenting plan order, which provided that Father would enjoy co-parenting time with K.F. 80 days per year. The trial court calculated Father's income based on the average of his past two years' revenues and set child support according to the guidelines. Finally, the trial court awarded Mother $1, 500 per month as alimony in futuro based upon the income disparity between the parties, Mother's need, and Father's ability to pay. Father timely appealed.

         II. Issues Presented

         Father presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred in its determination that Father's trail income from Legacy was a marital asset subject to equitable division and in the calculation of the value placed thereon.
2. Whether the trial court erred by awarding Father co-parenting time with K.F. of 80 days per year.
3. Whether the trial court erred in its calculation of Father's income for the purpose of establishing the proper child support amount.
4. Whether the trial court erred by awarding to Mother alimony in futuro in the amount of $1, 500 per month.
5. Whether Father should receive an award of attorney's ...

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