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Street v. Street

Court of Appeals of Tennessee, Knoxville

March 29, 2017


          Session December 14, 2016

         Appeal from the Chancery Court for Washington County No. 41981 E.G. Moody, Chancellor

         In this divorce case, Ed Street (Husband) appeals the trial court's division of property, arguing that he should not have been assigned all of the debt associated with the business assets awarded to him. Husband also asserts that the trial court erred in granting Jane Bingham Street (Wife) an award of monthly alimony in futuro of $2, 000. Finding no abuse of discretion, we affirm.

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

          Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Ed Street.

          Lois B. Shults-Davis, Erwin, Tennessee, for the appellee, Jane Bingham Street.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.




         On March 18, 2013, Wife filed a complaint for separate maintenance, asking the trial court to award her child support and spousal support, and to equitably divide the assets and liabilities of the parties. Husband filed a counterclaim for divorce. The trial court ordered Husband to provide Wife support pendente lite by order entered February 4, 2014, nunc pro tunc to September 23, 2013. Following Husband's motion to reduce his support based on his alleged inability to pay, the trial court ordered his child support and spousal support to be reduced in an order entered on July 29, 2014. As will be seen below, the trial court later found that Husband had misrepresented his financial condition in his effort to obtain a reduction in his support obligations. A trial was held on November 4 and 16, 2015. The trial court set forth its findings of fact in a thorough memorandum opinion, stating, in pertinent part, as follows:

The Husband stipulated that the Wife was entitled to a divorce on the grounds of adultery.
The Wife is sixty-one years old and the Husband is seventy-five years old. The parties were married on January 13, 1990 and they have been married for twenty-five years. The parties have two children who have reached the age of majority. The Husband also has two adult children by a previous marriage.
Several of the properties that the parties owned have been foreclosed or seized by creditors. Husband and his son, who has managed some of the business interests for the Husband, testified that several of the business interests of the Husband are in a state of collapse and that there are no assets for division. However, Husband has not filed for bankruptcy or made plans to file. From the evidence introduced at trial, it is doubtful that anyone knows the true status of all of the Husband's business interests and/or trusts, including himself.
In the period leading up to the parties' separation and the filing of this case, Husband unilaterally, without Wife's consent, set up a trust known as Main Street Investors Trust and transferred or caused to be transferred to the trust numerous business interests which included some marital business interests.
The Husband used marital funds for travel expenses for travel with his paramour.
From the 2013 Federal Income Tax Return of Husband, he had more than $662, 000.00 in taxable income.
The Court had previously based a reduction of child support and alimony on Husband's one page representation of approximately $5, 000.00 income per month during 2013 and a similar amount of income to Wife.
The amount of child support and alimony that was taken from Wife by reason of Husband's misrepresentation of his income through September of 2015 amounts to approximately $40, 000.00.
In September, 2015, Husband filed a motion to modify alimony, alleging that he had no money for payment of his support obligations.
After the filing of this motion Husband, without leave of the Court, stopped paying Wife's residential mortgage which he had been ordered to do. The mortgage is now in arrears for several months and is in danger of foreclosure.
The Husband also stopped paying alimony in September, 2015 after the filing of the motion.
While not paying his Court ordered obligations to benefit Wife, Husband, or those acting for him, continued to pay the mortgage payment encumbering the separate property of Husband and in which property Husband's son, by his first marriage, was living and continues to live.
It is uncontested in the record that multiple bank accounts' statements for the month of September 2015 contained more than enough money to pay the mortgage on Wife's residence and to pay the alimony ordered to be paid to her.
The Husband possessed the ability to pay his Court ordered obligations in September 2015.
The tax returns filed both jointly and separately for the last several years were entered into the record. Most years
Husband earned several hundred thousand dollars. Although, the 2014 tax return shows a loss, the 2013 tax return showed income of more than $660, 000.00. No year, other than the 2014 loss, showed less than six figure earnings for the Husband.
Husband testified that the Wife fulfilled her role as a wife and mother, having raised two fine children as a stay-at-home mom other than the time she spent working in the family businesses.
Separate from income from the family businesses, the Wife has never earned more than $1, 000.00, net per month. Wife is currently employed ...

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