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Davis v. Davis

Court of Appeals of Tennessee, Nashville

December 29, 2016


          Session September 7, 2016

         Appeal from the Chancery Court for Williamson County No. 42330 Michael Binkley, Judge

         This is an appeal from the divorce in a 26-year marriage. The court awarded the divorce to Wife on the ground of inappropriate marital conduct and awarded Wife approximately 62 percent of the marital estate. The court ordered Husband to pay alimony in futuro and Wife's attorney's fees as alimony in solido. Husband appeals the court's division of the marital estate, the award of alimony in solido, and the amount of alimony in futuro awarded. We have determined that the division of the marital estate, under the circumstances presented, was equitable and that the record supports the determination to award alimony in futuro and alimony in solido; we vacate the amount awarded as alimony in futuro and remand the case for further reconsideration of the amount awarded.

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

          Phillip R. Newman and Alisha Guertin Warner, Franklin, Tennessee, for the appellant, William Stuart Davis.

          Grant C. Glassford, Brentwood, Tennessee, for the appellee, Cathy Denise Davis.

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



         William Davis ("Husband") and Cathy Davis ("Wife") were married on December 23, 1988; two children were born of the marriage, both of whom have now reached the age of majority. Husband is retired from the Air Force and the Tennessee Air National Guard and, at the time of the proceedings at issue in this appeal, worked as a pilot for FedEx. Wife worked as a teacher but retired in 2012 due to health issues. Husband filed for divorce on July 22, 2013, on the grounds of irreconcilable differences; Wife filed a counter-complaint on March 4, 2014, citing irreconcilable differences and Husband's inappropriate marital conduct. Husband amended his complaint on March 25, 2015, to add inappropriate marital conduct as a ground as well. Mediation was not successful, and a trial was held on April 1, 2015, at which Husband, Wife, and Joseph Leocha, who prepared the couple's tax returns during their marriage, testified. Wife turned 52 on the day of trial; Husband was 51. At the request of the court, the parties filed a joint statement of assets and liabilities. On April 23, the court announced its findings of fact and conclusions of law.

         On June 12, 2015, the trial court entered an order granting a divorce to Wife on the grounds of inappropriate marital conduct. The court classified and divided the marital property and debts and proceeded to award Wife alimony in future in the amount of $4, 500 per month until Husband's 60th birthday, at which point it would decrease to $2, 500 per month until his 65th birthday, when it would decrease to $2, 000 per month until Wife's death or remarriage or Husband's death. As unspecified "additional alimony, " the court ordered that Husband pay Wife's COBRA conversion premium for three years. Husband was also ordered to pay $20, 000 as alimony in solido for Wife's attorney's fees.

         Husband filed a motion to alter or amend. Pertinent to this appeal, he requested that the court amend the final decree to provide that he was awarded the entire balance of funds in one of the couple's bank accounts, rather than the 26 percent share he had received, and also that the c ourt remove the obligation that he pay alimony in solido. The trial court denied Husband's motion with respect to the bank account but granted the motion in part by reducing the amount of alimony in solido Husband owed.

         Husband appeals the division of the marital estate and the award of alimony in futuro and in solido.

         I. Standard of Review

         We review the trial court's findings of fact de novo, with a presumption that the findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). Our review of matters of law is de novo, affording no presumption of correctness to the trial court's conclusions. Armbrister, 414 S.W.3d at 692; Kendrick, 90 S.W.3d at 569-70.

         II. Analysis

         A. Division of the Marital Estate

         Husband contends that the division of the marital estate was inequitable because the court "placed too great of an emphasis on [Husband's] separate property."

In Batson v. Batson, we explained that:
A trial court's division of marital property is to be guided by the factors contained in Tenn. Code Ann. § 36-4-121(c).[1] However, an equitable property division is not necessarily an equal one. It is not achieved by a mechanical application of the statutory factors, but rather by considering and weighing the most relevant factors in light of the unique facts of the case.

769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). On review, "[a]n appellate court is 'disinclined to disturb the trial court's decision unless the distribution lacks proper evidentiary support or results from some error of law or misapplication of statutory requirements and procedures.'" Watson v. Watson, 309 S.W.3d 483, 495 (Tenn. Ct. App. 2009) (quoting Martin v. Martin, 155 S.W.3d 126, 129 (Tenn. Ct. App. 2004)).

         Prior to dividing the assets, the court considered the factors listed at section 36-4-121(c) and made findings with respect to factors (1), (3), (4), (5), (6), (8), and (9). Husband does not challenge the specific findings but argues that the court put too much weight on factors (4) and (6), contending that those factors "appear to be the only substantive reasons offered by the trial court in support of its decision to divide the marital estate on a 62.43 % - 37.57 % basis."

The court made the following findings with respect to factors (4) and (6):
15. As set forth in T.C.A. §36-4-121(c)(4), the Court considered the relative ability of each party for future acquisitions of capital assets and income. The Court finds that this is an important part of this case. The Court reviewed all of the assets and liabilities. The Court finds that after looking at Husband's current income, his ability to continue to earn a handsome income, along with his separate property, that this is not an appropriate case for a 50-50 division of marital assets. The Court finds that Husband's separate assets include hard assets that have value and income-generating assets in the form of deferred compensation and retirement. Husband's income-generating assets will continue to generate money and income.
The Court finds that after consideration of Husband's separate estate after the division of marital assets, that the value of his separate estate will be substantially higher than the value of Wife's separate estate.
The Court finds that Husband's ability to acquire additional assets, particularly in continuing to fund his retirement at the rate of approximately $1, 400.00 per month, will assist him in replacing the loss of his assets as a result of this divorce much more quickly than Wife would be able to under the circumstances of this case.
* * *
17. As set forth in T.C.A. §36-4-121(c)(6), the Court considered the value of the separate property of each party. The Court finds that the value of Husband's separate party is approximately $500, 000.00. The Court finds that while not all of the separate property is income producing, there are some hard assets that will increase in value during the remainder of Husband's life.
The Court finds that of the inherited assets Husband received, some are income producing assets and he will enjoy a better standard of living than Wife after the marriage, which influences the Court's alimony award as set forth herein.

         In making the division, the court stated the following rationale:

In reviewing the parties assets and liabilities, the Court considered the factors listed in T.C.A. §36-4-121(c). The Court has spent a lot of time thinking about the division of the assets. The Court considered how the parties will be able to acquire income-producing assets in the future. The Court has taken into consideration a reasonable rate of return on a dollar. The Court has taken into consideration the incomes of the parties. There is a huge disparity in favor of Husband with regard to the ability to generate income.

         Husband contends that the court made assumptions that are unsupported by the proof in the record, specifically, that the court erroneously considered whether Mr. Davis' separate assets would generate income in the future.

         The division of marital property reflects the court's consideration of not only factors (4) and (6) but also the other factors the court was required to consider. The court characterized the marriage as "a typical marriage partnership, where Husband earned a considerable income. . . [and] Wife was the primary caretaker of the parties' children during the course of the marriage" and that, in addition to contributing income to the family from her employment during the marriage, Wife "made intangible contributions by being a good parent, primary caretaker and taking care of the parties' home. . . ." The court further recognized the significant disparity in the economic circumstances of the parties at the time of the divorce as "one of the reasons why the marital assets are to be awarded 60/40 in favor of Wife." The court did not state the weight it assigned to any particular factor and, taken in context, we do not find that the court's reliance on factors (4) and (6) is in any way inappropriate;[2] the findings are supported by the record, and the division is not the result of a misapplication of the factors. Accordingly, we affirm the division of the marital estate.

         B. Award of Alimony

         A court may award rehabilitative alimony, alimony in futuro, transitional alimony, alimony in solido, or a combination of these. Tenn. Code Ann. § 36-5-121(d)(1). The intent of the General Assembly is that "a spouse, who is economically disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by the granting of an order for payment of rehabilitative alimony." Id. at (d)(2). When rehabilitation is not feasible, "the court may grant an order for payment of support and maintenance on a long-term basis or until death or remarriage of the recipient . . . ." Id. at (d)(3). Relevant factors which are to be considered in awarding alimony include:

(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earnings capacity to a reasonable level;
(3)The duration of the marriage;
(4)The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment outside the home, because such party will be custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and intangible;
(8)The provisions made with regard to the marital property, as defined in § 36-4-121;
(9)The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
(12)Such other factors, including the tax consequences to each party, as are necessary to consider the equities ...

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