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Lee v. Lee

Court of Appeals of Tennessee, Nashville

March 31, 2017


          Assigned on Briefs April 4, 2016

         Appeal from the Circuit Court for Montgomery County No. MCCCCVDV10931 Ross H. Hicks, Judge

         This case primarily concerns the interpretation of a legal separation agreement that was approved by the trial court as part of a decree of legal separation. After the husband failed to pay child and spousal support, the wife filed a petition for contempt and modification. The husband responded by, among other things, requesting a divorce. The trial court granted the parties a divorce, reformed the provisions of the legal separation agreement, awarded a judgment for child and spousal support arrearages, and held the husband in criminal contempt. On appeal, the husband argues that the trial court erred in its interpretation of the legal separation agreement; in awarding the wife a judgment for child and spousal support arrearages; in granting his request for a divorce; and in holding him in criminal contempt. We affirm in part, reverse in part, and remand this case for further proceedings.

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

          Terry Shawn Lee, Garland, Texas, pro se appellant.

          Andrew M. Cate, Brentwood, Tennessee, for the appellee, Shannon Snider Lee.

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Brandon O. Gibson, JJ., joined.



         I. Factual and Procedural Background

         Terry Shawn Lee ("Husband") and Shannon Snider Lee ("Wife") legally separated on September 24, 2010, when the Circuit Court for Montgomery County, Tennessee entered a Final Decree of Separation. Their marriage produced three children, two sons and a daughter. By the time of the separation, their oldest child had already reached the age of majority, and he had graduated from high school.

         The Final Decree of Separation approved and incorporated by reference a Legal Separation Agreement, which had been executed by the parties on September 9, 2010. The Agreement's purpose was "to make an equitable division of all their property which settles and determines all claims for alimony, which divides all property, both real and personal, owned by them or either of them, and which divides responsibility for all current indebtedness."

         Under the Agreement, Husband and Wife would continue to share their residence until such time as it could be sold. While they lived in the home, the Agreement required Husband to pay for all utilities and the mortgage, but otherwise, the parties agreed that they would each assume responsibility for the payment of bills as they had before the separation.

         The Agreement also obligated Husband to pay Wife child support and alimony, but only once the marital residence had been sold. The Agreement provided for specific, monthly child support in the amount of $1, 278.00.[1] But, for support of Wife, the Agreement provided that Wife would receive the difference between 50% of Husband's income, not to exceed $3, 000, and the child support payment. In other words, for child support and alimony combined, the Agreement required Husband to pay monthly the lesser of 50% of his income or $3, 000. Additionally, the Agreement granted Wife 50% of any annual bonus Husband received until their middle child graduated from high school, at which point Wife would receive 30% of Husband's annual bonuses. Upon the youngest child's graduation, Husband's child support and alimony obligations ceased.

         The court also entered an Agreed Permanent Parenting Plan Order to take effect once the parties moved into separate residences. The order designated Wife as the primary residential parent and granted her 265 days and Husband 100 days of parenting time. Consistent with the Legal Separation Agreement, the Agreed Permanent Parenting Plan Order provided that Husband would make a child support payment of $1, 278.00 in semimonthly installments of $639. Husband was also required to maintain health insurance for the children.

         Over two years after entry of the Final Decree of Separation, on December 31, 2012, Husband filed a pleading entitled "Amended Complaint for Legal Separation" in which he sought to amend his complaint for legal separation to a complaint for divorce. He also sought entry of a "new Marital Dissolution Agreement" based upon an alleged, unspecified "material change of circumstances."

         Husband did not pursue his request for a divorce until several months later. On May 6, 2013, Wife filed a petition for contempt and modification of child support. In her petition, she alleged, among other things, that Husband had failed to make child or spousal support payments and failed to pay for the children's health insurance. Wife also alleged that Husband had "spent a total of five days with the parties' minor children in 2012." Wife filed a separate notice advising Husband that she was charging him with criminal contempt. Husband, acting pro se, responded to the petition and requested that the court "issues [sic] a divorce decree to replace the Legal separation agreement."

         Pertinent to this case, Husband also claimed in his response that Wife had miscalculated the amount of child and spousal support due. In Husband's view, with the graduation of their middle child from high school, his combined obligation for child support and alimony should have been reduced to 30% of his income. As Husband complained, "[Wife] is still figuring everything on 50% and not 30%."

         Following a hearing at which Wife and Husband were the sole witnesses, the trial court entered a Final Decree of Divorce. In its decree, the court stated that it was interpreting the Amended Complaint for Legal Separation as a request for a divorce and declared the parties divorced based on the fact that they had been separated longer than two years. The trial court also found Husband to be in criminal contempt due to his failure to pay court-ordered child and spousal support.

         In calculating the child support and maintenance arrearage, the court recognized the dispute raised by Husband over how much of his income he was required to pay. In resolving the dispute, the court made the following conclusions of law:

5. There is disagreement about the language of Paragraph 10 of the Legal Separation Agreement which states
CHILD SUPPORT AND MAINTENANCE: Until the marital residence is sold the parties will continue to share the residence together. Husband will be responsible for the mortgage payment, utilities, and the couple will continue to divide the bills in the same manner as before the separation. When the marital residence is sold, the Wife will receive one-half of the Husband's net income not to exceed $3, 000.00 monthly until youngest child graduates from high school. These monies are a compilation of child support and maintenance. Child support is currently calculated at $1278.00 (One thousand two hundred seventy eight dollars) monthly. If Husband receives a yearly bonus he will provide 50% (fifty percent) to Wife by January 15th of the following year until [their middle child] graduates from high school; and then 30% (thirty percent) until [their youngest child] graduates high school. At which time all disbursements will cease.
6. The Court interprets this paragraph as only the bonuses are reduced to 30%, however, the Court is allowing the reduction to 30% of both the support and the bonuses after the child support is paid to Mrs. Lee. Net income is defined as the gross income minus the taxes only, and Mr. Lee shall not deduct other items which are not allowed when calculating his payments.

         In making this conclusion, the court relied upon testimony of Wife in which she seemingly acknowledged that Husband's obligation to pay child support and alimony would reduce to 30% of all his income, not just bonuses, upon their middle child's graduation from high school.

         On appeal, Husband raises several issues with the Final Decree of Divorce. For her part, Wife submits that the trial court erred in the calculation of the child support and alimony arrearages. Wife also seeks an award of her attorney's fees on appeal.

         II. Analysis

         Before reaching the substantive issues raised by the parties, we must first address the state of Husband's brief. Wife submits that Husband, who is representing himself in this appeal, failed to comply with Rule 27 of the Tennessee Rules of Appellate Procedure, [2] which sets forth the requirements of briefs. Wife, therefore, requests that Husband's appeal be dismissed.

         A. Sufficiency of Husband's Brief

         "It is well-settled that pro se litigants must comply with the same standards to which lawyers must adhere." Watson v. City of Jackson, 448 S.W.3d 919, 926 (Tenn. Ct. App. 2014). As explained by this Court:

Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant's adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations omitted). We keep these principles in mind in considering this appeal and, specifically, Husband's brief.

         Husband's brief does contain some of the components required by our rules. The brief includes a table of contents, a statement of issues, a statement of the case, a statement of facts, an argument, and a conclusion. However, the issues referenced in the table of contents and the issues presented for review vary. More problematic is Husband's argument. He has not put forth arguments as much as he has listed authority and included documents from below. Wife has also correctly pointed out that many of the documents included in Husband's brief were not included in the record on appeal. Consequently, we are unable to consider them. See Tenn. R. App. P. 13(c), 28.

         While Husband's brief is inadequate in many ways, we are able to grasp the basics of his arguments. To some extent, Wife's issues on appeal overlap with those of Husband as we discern them. Therefore, we exercise our discretion to consider the merits of Husband's appeal despite the deficiencies in his appellate brief. See Tenn. R. App. P. 2 (allowing this Court to suspend the requirements of the Tennessee Rules of Appellate Procedure "[f]or good cause").

         We recast Husband's issues as follows: (1) whether the trial court properly interpreted the Legal Separation Agreement; (2) whether the trial court erred in awarding Wife an arrearage for child and spousal support; (3) whether the trial court erred in granting the parties a divorce; and (4) ...

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