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Bewick v. Bewick

Court of Appeals of Tennessee, Nashville

February 13, 2017

ELIZABETH MADELINE SHELTON BEWICK
v.
ROBERT KENT BEWICK

          Session September 21, 2016

         Appeal from the Circuit Court for Warren County No. 4540 Jon Kerry Blackwood, Senior Judge.

         This appeal stems from a divorce proceeding where the wife was awarded a divorce on the ground of adultery. The husband appeals and raises several issues related to the trial court's division of the marital estate. He also challenges the trial court's award of alimony in solido to the wife. Having reviewed the record transmitted to us on appeal, we affirm the trial court's division of the marital estate but vacate the award of alimony and remand for further proceedings consistent with this Opinion.

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

          Timothy Pirtle, McMinnville, Tennessee, for the appellant, Robert Kent Bewick.

          Michael D. Galligan and Benjamin R. Newman, McMinnville, Tennessee, for the appellee, Elizabeth Madeline Shelton Bewick.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         BACKGROUND AND PROCEDURAL HISTORY

         Robert Kent Bewick ("Husband") and Elizabeth Madeline Shelton Bewick ("Wife") were married on July 8, 1978. Two children were born of the marriage, both of whom have now reached the age of majority. Husband is a dentist who has practiced in both Tennessee and Indiana. Although Wife previously worked in Husband's dental office for much of the parties' marriage, she was employed as a receptionist at a law firm at the time of trial.

         The parties were married while Husband was in dental school. During the early years of the marriage, while Husband was still pursuing his dental studies, the parties lived in Nashville. Wife worked year-round to help pay for the parties' living expenses, and Husband worked in the summers when he was not in school.

         Following Husband's graduation from dental school, he had the opportunity to return to his home state of Indiana to practice dentistry with his father. He declined the opportunity at that time, however, and started a practice of his own near Wife's family in McMinnville, Tennessee. During the first several years of Husband's practice, Wife stayed at home with the children and took care of the parties' household. She also helped to recruit patients for Husband by telling people in the community about his dental practice. As the children got older, Wife began working with Husband at his practice, assisting him in a variety of ways. She also continued to perform the parties' household duties, including laundry, cooking, and cleaning.

         In the early 1990s, Husband developed a serious problem with his cervical spine. Although this injury forced him to take a two-year sabbatical from work, he eventually returned to the practice of dentistry. To deal with reccurring pain, however, Husband started to self-medicate by using Demerol. In 1996, Wife started to suspect Husband was abusing the drug. Shortly thereafter, Husband moved to Atlanta, Georgia, in order to participate in a rehabilitative treatment program. He stayed in the program for several months. While he was away from McMinnville, Wife attended to the dental practice and arranged for other dentists to temporarily fill in.

         Following Husband's return from Atlanta, he once again was presented with an opportunity to become a part of his father's dental practice in Indiana. This time, Husband did not reject the opportunity. In fact, Husband acquired a two-thirds interest in a limited liability company, Bewick Building Company LLC (the "Indiana LLC"), that owned the building where the Indiana practice was located.[1] Although Wife and the parties' children remained in McMinnville, Husband began to split his time between Indiana and Tennessee in 1999. Typically, he would work three days at his McMinnville dental practice and then fly to Indiana to work three days at his father's practice. Husband adhered to this work schedule for approximately five years until he began alternating weeks between Indiana and Tennessee. He maintained a regular work presence in Indiana until 2010. There is no dispute that, prior to his return to Tennessee full-time, Husband engaged in an affair with one of the employees of his father's practice. Wife would eventually learn of the affair, and the parties separated. Husband's paramour would later move to McMinnville, where she resided with him and worked in his dental office.

         Wife filed a complaint for divorce on August 16, 2013. In addition to asserting that Husband was guilty of inappropriate marital conduct, Wife alleged that irreconcilable differences had developed between the parties. Her prayer included a number of requests for relief, including the following: (1) that she be awarded the marital home, (2) that the parties' marital estate be divided equitably, and (3) that she be awarded spousal support and attorney's fees.

         Husband filed an answer and counterclaim on January 21, 2014. Therein, Husband admitted that irreconcilable differences had arisen between the parties. Although he also admitted that he was guilty of an extra-marital relationship, Husband otherwise denied that he had committed inappropriate marital conduct. Moreover, in his counterclaim, he expressly averred that Wife was guilty of inappropriate marital conduct. Shortly after the filing of Husband's answer, following a hearing, the trial court ordered Husband to pay Wife temporary spousal support in the amount of $3, 500.00 per month. Wife would later file an answer to Husband's counterclaim on August 4, 2015, wherein she denied that she had committed inappropriate marital conduct.

         A trial was held over two days on August 5 and 6, 2015. On September 11, 2015, the trial court entered its findings of fact and conclusions of law in the case. In addition to granting Wife a divorce on the ground of adultery, [2] the trial court equitably divided the parties' marital estate and ordered Husband to pay Wife $6, 000.00 per month for ten years as alimony in solido. Incident to its division of the parties' marital estate, the trial court awarded Wife the marital home, valued at over $430, 000.00, plus the corresponding mortgage debt of $170, 000.00. For his part, Husband was awarded his Tennessee dental practice, valued at $210, 000.00, plus its "accompanying debt."[3] Husband was also awarded the interest he acquired in the Indiana LLC, valued at $500, 000.00.[4] Following the entry of the trial court's September 11 order, Husband filed this timely appeal.[5]

         ISSUES PRESENTED

         In his brief on appeal, Husband raises seven issues for our review. Slightly rephrased, these issues are as follows:

1. The evidence preponderates against the classification of Husband's interest in the Indiana LLC as marital property.
2. The evidence preponderates against the trial court's division of marital property.
3. The evidence preponderates against the trial court's apportionment of debt between the parties.
4. The trial court abused its discretion in ordering Husband to pay Wife $720, 000.00 in alimony in solido.
5. The trial court erred in ordering Wife's attorney's fees to be paid from a marital asset.
6. The trial court erred in finding that Husband dissipated marital assets of $75, 000.00.
7. The trial court erred in excluding from evidence an offer of proof by Husband that Wife inherited substantial assets from her father.

         STANDARD OF REVIEW

         This case was tried by the trial court without a jury. Accordingly, we review the case de novo upon the record with a presumption of correctness regarding the trial court's findings of fact. Riggs v. Riggs, 250 S.W.3d 453, 456 (Tenn. Ct. App. 2007). We will affirm the trial court's findings unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). In order for the evidence to preponderate against a particular finding of fact, it must support another finding of fact with greater convincing effect. Ingram v. Wasson, 379 S.W.3d 227, 237 (Tenn. Ct. App. 2011) (citation omitted). When the resolution of the issues in a case depends on the truthfulness of witnesses, the trial judge is in a far better position than this Court to decide those issues. Riggs, 250 S.W.3d at 456 (citations omitted). As such, the credibility accorded to a witness by the trial court will be given great weight on appeal. Id. (citations omitted). Unlike our review of the trial court's factual findings, we review conclusions of law with no presumption of correctness. Hyneman v. Hyneman, 152 S.W.3d 549, 553 (Tenn. Ct. App. 2003) (citation omitted).

         DISCUSSION

         Offer of proof related to Wife's alleged inheritance

         We begin our discussion by addressing Husband's concern that the trial court erred in excluding from evidence an offer of proof concerning certain assets that Wife inherited. Having reviewed the record transmitted to us on appeal, we conclude that we are unable to effectively review this issue. Towards the conclusion of the trial court proceedings, the following exchange occurred between Husband's counsel and the trial judge:

[Husband's counsel]: Your Honor, we'd make one final -- this will either be an offer of proof or an exhibit, depending on what the Court finds with regard to [the] merit of [Wife's counsel's] motion in limine regarding the Shelton -- the Joe Howell Shelton testamentary trust. If the Court reviews that motion and decides not to consider it, then it will be an offer of proof, otherwise --
The Court: It will either be an exhibit or be an offer of proof.
[Husband's counsel]: Very well. And with that, Your Honor, the defense rests.

         We are unable to discern the specific character of the evidence that Husband wished the trial court to consider. No exhibit was actually introduced, nor was any offer of proof actually made. Moreover, the referenced motion in limine, which apparently concerned the proposed evidence, is not contained in the record.

         Although it is not apparent from the transcript that Husband actually made an offer of proof concerning Wife's alleged inheritance, the trial court appeared to have specifically rejected Husband's suggestion that Wife's interest in a trust should be considered incident to the divorce. In its findings of fact and conclusions of law, the trial court specifically stated as follows: "The Court further finds that the wife's interest in a trust is not her property, in that she has no possessory interest in said property." We assume that this finding was made in connection with the trial court's review of the motion in limine referenced by Husband's counsel at trial.

         Although Husband's failure to actually make an offer of proof concerning Wife's alleged inheritance is not necessarily fatal on its own, see Singh v. Larry Fowler Trucking, Inc., 390 S.W.3d 280, 286 (Tenn. Ct. App. 2012) (noting that an offer of proof is not necessary when the substance of the evidence and its reason for exclusion are apparent from the context), the record transmitted to us on appeal contains no details of the alleged property interest that Husband wished for the trial court to consider incident to the divorce. Again, the motion in limine that apparently dealt with Wife's supposed property interest is absent.

         Based on the state of the record before us, we cannot ascertain whether Wife possessed some type of property interest in a trust that should have been considered. The proposed evidence is entirely missing from the record. Interestingly, Husband does not dispute this fact, nor does he disagree that the absence of this evidence inhibits our ability to conduct meaningful appellate review. In his brief, for instance, he specifically states as follows: "The appellate tribunal cannot evaluate this source of income to the wife or review the propriety of the trial court conclusion that the testamentary trust does not constitute a present interest without the offer of proof being part[] of the record on appeal."

         "It is the appellant's duty 'to prepare [a] record which conveys a fair, accurate, and complete account of what transpired in the trial court regarding the issues which form the basis of the appeal.'" Jones v. LeMoyne-Owen Coll., 308 S.W.3d 894, 902 (Tenn. Ct. App. 2009) (quoting In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005) (citing Tenn. R. App. P. 24)). Husband had a duty to make sure that the record on appeal would ...


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