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Mabile v. Mabie

Court of Appeals of Tennessee, Jackson

January 9, 2017


          Session October 26, 2016 [1]

         Direct Appeal from the Circuit Court for Shelby County No. CT-005633-11 Gina C. Higgins, Judge.

         This case arises out of a divorce action. After fourteen years of marriage, the husband filed a complaint for divorce. Following a brief and unsuccessful attempt at reconciliation, the wife filed a counter-claim for divorce. Throughout the marriage, the husband worked as a medical doctor and was a partner in a highly successful medical practice. The wife's primary role in the family was as a stay-at-home mother. The trial court declared the parties divorced and awarded the wife, among other things, rehabilitative alimony, alimony in futuro, and attorney's fees. The husband appeals the trial court's awards of alimony, the valuation of his interest in his medical practice, the award of attorney's fees to the wife, and the court's decision to not punish the wife for civil contempt of court. The wife seeks attorney's fees for defending this appeal. Discerning no reversible error, we affirm the judgment of the trial court. We deny the wife's request for attorney's fees on appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded.

          Kay Farese Turner and Emily Hamm Huseth, Memphis, Tennessee, for the appellant, Matthew Wheeler Mabie, M.D.

          Mitchell David Moskovitz, Adam Noah Cohen and Zachary Michael Moore, Memphis, Tennessee, for the appellee, Carla Jennings Mabie.

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



         I. Facts & Procedural History

         Matthew Wheeler Mabie, M.D. ("Husband") married Carla Jennings Mabie ("Wife") on June 7, 1997. Two minor children were born of the marriage: a daughter, age thirteen at the time of trial, and a son, age six at the time of trial, which was in May 2013. Both children attended private schools in Memphis and were involved in demanding and expensive extra-curricular activities.

         Husband and Wife were both age forty-one at the time of trial and age forty-three at the time of the court's ruling. Wife attained a Bachelor of Science degree in communications prior to the marriage, but she had not worked outside of the home since the birth of the parties' son in 2004. Prior to that, Wife worked off-and-on and was able to earn her real estate license. Working as a realtor, Wife earned approximately $40, 000-$45, 000 per year. However, by agreement of the parties, she had not been employed in any capacity for nearly ten years.

         Husband graduated from medical school on the same day that he and Wife were married. He worked throughout the marriage as a medical doctor, and he began to work as an employee at Mid-South Pulmonary Specialists ("MSPS") in 2004. Husband became a partner in MSPS in 2007. Husband's employment and business interest in MSPS was a lucrative one for the family over the years, with his income in the three years prior to trial being (approximately) $890, 000 in 2010, $818, 000 in 2011, and $950, 000 in 2012. This afforded the family a high standard of living that included private school educations for their children, expensive extra-curricular activities for the children, two homes in Memphis and a lake house in Arkansas, a boat, and vacations to Mexico, Canada, and elsewhere.

         The parties' marriage had been troubled for many years. Husband moved out of the marital residence in November 2011 and filed a complaint for divorce on December 19, 2011. In his complaint, Husband alleged that Wife was guilty of inappropriate marital conduct and that irreconcilable differences had arisen in the marriage that would prevent the parties from living together as husband and wife. Husband requested that he be named "co-Primary Residential Parent" of both children. He also prayed for an equitable division of marital debts and property, the marital residence, including all furniture, for his separate property, and for attorney's fees, court costs and litigation expenses.

         On January 27, 2012, both parties consented to an order of reconciliation pursuant to Tennessee Code Annotated section 36-4-126. In that order, Husband and Wife agreed that Wife would maintain exclusive use of the martial residence and that the couple would continue with counseling during the six month suspension of the divorce proceedings. The attempt at reconciliation failed, and on June 22, 2012, the parties filed a consent order setting aside the order of reconciliation and resuming the discovery process.

         On December 20, 2012, Wife filed an answer to Husband's complaint and a counter-complaint for divorce. Wife admitted to Husband's allegation of irreconcilable differences but alleged that he was the one guilty of inappropriate marital conduct. Wife requested that she be awarded alimony, attorney's fees, suit expenses, both temporarily and permanently, and that the court would make an equitable division of the marital property and debt between the parties. Wife also prayed that she be named the primary residential parent of the parties' children. Husband responded by amending his complaint to ask that the court name him primary residential parent of the children, rather than co-primary residential parent as he had originally requested. Wife answered this amended complaint and asked the court to deny Husband's request.

         On March 7, 2013, Husband petitioned the court to hold Wife in civil contempt based on allegations that she had violated the mandatory injunction set forth in Tennessee Code Annotated section 36-4-106. Husband alleged that Wife had taken several different amounts, including one lump sum of $50, 000, out of the parties' Morgan Stanley account without Husband's knowledge, and he requested that the Court charge these amounts against Wife's ultimate division of marital property. In May of 2013, Wife filed her own motion for contempt against Husband alleging that he was making disparaging comments about her to the children. The parties consented to an order that prevented them from talking badly about one another in front of the kids. Otherwise, regarding the children, it appears that the parties worked things out fairly well between themselves. There was never a guardian ad litem appointed for the children during the divorce, and no issues related to the children are on appeal.

         On March 25, 2013, Wife filed a motion pendente lite for child support, alimony, and attorney's fees. This motion was heard over the course of two days by a divorce referee. Ultimately, the referee ordered Husband to pay Wife the sum of $10, 000 per month throughout the pendency of the divorce proceedings, as well as other specific expenses relative to the children and the marital estate. The $10, 000 amount included $3, 200 in child support and $6, 800 in transitional alimony to Wife. Husband was also ordered to pay $25, 000 of Wife's interim attorney's fees. Neither party appealed the ruling of the divorce referee, and it was confirmed by the trial court on May 10, 2013.

         The divorce case was tried over three days on May 15, 16, and 20, 2013. The trial court heard a substantial amount of testimony, including testimony from Husband, Wife, experts for both sides, husband's mistress, and the parties' children, as well as being given evidentiary depositions and multiple trial memos and exhibits for review. At trial, Husband based his grounds for divorce on Wife's spending habits, her alleged harassment of him at work, and on multiple verbal and physical altercations. Wife based her grounds for divorce on Husband's infidelity and several verbal altercations between the parties.

         On April 2, 2015, nearly two years after the trial concluded, Husband and Wife jointly moved the trial court to render a ruling on all pending issues and to enter a final decree of divorce. On May 4, 2015, the trial court issued an oral ruling on some of the items at issue in the divorce. At the conclusion of that proceeding, the trial court charged the parties and their counsel with assigning numerical values to various items of personal property in the marital estate. The court then stated:

That leaves only the award of an attorney fee. And contingent upon how the breakdown plays out, how the division actually works out after the Court looks at the values assigned to those personal property items along with the accounts, the stocks, the bonuses, the Court will make its final determination as to what it's going to do with the attorney fee.

         On May 20, 2015, the parties reconvened before the court so that it could complete its ruling on the outstanding issues. At this time, the trial court confirmed some portions of its initial ruling and supplemented others, including dividing bank accounts, vehicles, and other items of personalty. Ultimately, the trial court found the entire marital estate to be valued at $3, 185, 379, of which Husband was awarded $1, 551, 690 and Wife was awarded $1, 064, 581. Furthermore, the trial court awarded Wife $6, 000 per month in rehabilitative alimony for three years and $5, 000 per month of alimony in futuro. The award of alimony in futuro was ordered to be paid concurrently with the rehabilitative alimony. The trial court entered a written final decree of divorce on August 10, 2015, and incorporated by reference the transcripts from the May 4, 2015 and May 20, 2015 rulings. On August 10, 2015, the trial court entered a permanent parenting plan designating Wife as the primary residential parent and requiring Husband to pay $3, 200 per month in child support. In addition to that sum, Husband is required to pay other expenses related to the children. Husband has not appealed the trial court's ruling with regard to parenting time or child support.

         II. Issues Presented

         Husband presents the following issues for review on appeal:

1. Whether the trial court erred in awarding rehabilitative alimony and alimony in futuro to Wife;
2. Whether the trial court erred in its valuation of Husband's business interest in MSPS;
3. Whether the trial court erred in awarding attorney's fees to Wife;
4. Whether the trial court erred in not charging Wife for civil contempt.

         We note that Husband's brief is replete with sub-issues and arguments that are only tangentially related to the issues stated above. We pass on the offer to crawl down each rabbit hole presented by Husband, and rather we ...

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