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Talley v. Talley

Court of Appeals of Tennessee, Knoxville

May 1, 2017

CAROLYN ANN TALLEY
v.
CLINTON EUGENE TALLEY

          Session Date: January 25, 2017

         Appeal from the Circuit Court for Hamilton County No. 12-D-1515 L. Marie Williams, Judge

         In this divorce action, the trial court valued and allocated the parties' marital assets. The court also awarded the wife alimony in futuro in the amount of $1, 800 per month while awarding the wife attorney's fees as alimony in solido in the amount of $35, 710. The husband has appealed. Discerning no error in the trial court's marital property division, we affirm that distribution. Furthermore, we affirm the award of alimony in futuro and attendant life insurance requirement. We modify the trial court's award of attorney's fees to the wife to the amount of $29, 060. The trial court's judgment is affirmed in all other respects.

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

          Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Clinton Eugene Talley.

          Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, Carolyn Ann Talley.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         Carolyn Ann Talley ("Wife") filed a complaint for divorce on July 27, 2012, naming Clinton Eugene Talley ("Husband") as the defendant. The parties were married on January 18, 1986, and separated on November 1, 2012. Two children were born of the marriage, a daughter and son, who were ages 29 and 28, respectively, by the time of trial. Although Wife previously had filed a divorce action in 2009, that cause was dismissed when the parties reconciled.

         The trial court conducted a bench trial spanning two non-consecutive days in January and March 2016. At the time of trial, Wife was sixty-three years of age while Husband was fifty-nine years old. Wife testified that she had been employed with Provident Life and Accident Insurance Company (now known as Unum) for thirty-eight years, from 1972 until her retirement in January 2012. Wife was earning $34, 500 per year as an administrative assistant at the time of her retirement. According to Wife, her only education following high school was one year of business school.

         Husband related that he possessed a bachelor's degree in mechanical engineering from the University of Tennessee at Chattanooga. Husband worked for various employers in that field throughout the parties' marriage. Husband's most recent employment was with Chicago Bridge and Iron at its plant located in Waynesboro, Georgia. He commuted weekly in this position, traveling to work on Sunday afternoons and returning home on Thursdays. According to Husband, he rented an efficiency apartment in Waynesboro during the work week. Husband's gross annual income was approximately $74, 000 in 2015.

         Although Husband reported no significant health concerns, Wife described serious health problems which she claimed prevented her from being employed. Wife had undergone back surgery, two surgeries for breast cancer, and surgery for skin cancer. Wife also suffered from ongoing problems resulting from pulled ligaments in her leg and foot, as well as stiffness in her neck. She had also been hospitalized on four occasions for issues related to anxiety. Upon trial, Wife was receiving Social Security benefits in the amount of $1, 475 per month. Wife was also receiving retirement benefits of $804 per month from Unum.

         According to Wife, she realized in 2009 that something in the marriage was amiss when Husband became secretive, aloof, and cold. Following her investigation, Wife discovered evidence that Husband had been involved with another woman by the name of M.C. Wife stated that Husband admitted to her that he had bought an engagement ring for M.C. The parties' son corroborated Wife's testimony, relating a conversation during which Husband admitted that he had proposed to another woman. Husband denied having a sexual relationship with M.C. The parties eventually separated in November 2012.

         Following the separation, Wife remained in the marital residence, which the parties had designed and constructed in 1992. Although title to the residence was not encumbered by a mortgage at the time of trial, Wife had been paying various expenses related to the home's maintenance, including taxes, insurance, and homeowner's association dues since the parties' separation. Wife reported that her total monthly expenses averaged $3, 488. The parties' adult daughter, who was attending college while working full time, was living with Wife and paying no rent.

         Both parties described their spending habits during the marriage as "frugal." As a result, in addition to having paid off the mortgage indebtedness on the marital residence, the parties had amassed significant financial accounts during the marriage. Despite his claimed frugality, however, the proof demonstrated that Husband had purchased a home on Country Village Drive in 2011, which he described as an "investment." The purchase was without Wife's knowledge or consent. While Husband related that M.C. and her children lived in the home for a period of time, he claimed that M.C. paid rent, although no rental income appeared on the parties' income tax return for that year. Husband admitted at trial that he lost $15, 000 to $20, 000 on the sale of the home due to the "housing slump."

         Husband later purchased a home on Anderson Avenue without Wife's knowledge and rented the dwelling to M.C. for several months. Again, the parties' tax return reflected no associated rental income. Husband asserted he was "building equity" in the home by making a mortgage payment of $983 per month while only charging M.C. $650 per month in rent. Eventually, Husband evicted M.C. because of excessive damage to the home. Husband also admitted, however, that he paid various expenses for M.C. during the parties' marriage, including rent for two separate apartments, moving expenses, utility and telephone expenses, Botox injections, and other miscellaneous expenses.

         Following trial, the court entered an order on April 29, 2016. The court, inter alia, granted a divorce to Wife on the basis of Husband's inappropriate marital conduct. Having considered the factors provided in Tennessee Code Annotated § 36-4-121 regarding an equitable division of marital property, the court valued the parties' marital assets based on the evidence and fashioned a distribution with assets awarded to Wife valued at $542, 763 and assets awarded to Husband worth $484, 900. The trial court then deducted purported liabilities from Wife's award, establishing her net asset value at $489, 338.

         With respect to the marital residence, the trial court noted that both Wife and Husband presented experts who proffered appraised values of $265, 000 and $285, 000, respectively. In determining the value of the marital residence to be $275, 000, with consideration given for the repairs needed, the court awarded the marital residence to Wife. Husband was awarded the equity in the Anderson Avenue rental home. In turn, the court valued and divided the remaining marital assets between the parties, including the present value of the marital portion of Wife's pension. Regarding the credibility of the parties' testimony, the court credited Wife's testimony while finding Husband's testimony to be inconsistent and "in no way credible."

         Concerning Wife's claim for spousal support, the trial court determined that Husband maintained a substantially greater ability to earn income and acquire assets because he remained employed. The court concluded that both parties had contributed to the marital estate while Husband was solely responsible for dissipation of assets. The court found that Husband's income was in excess of $6, 000 per month while Wife only received $1, 475 monthly in Social Security benefits and $206 monthly as the non-marital portion of her pension.[1] Based upon the parties' statements of income and expenses, the court found that Wife had a need for spousal support and Husband had the ability to pay. The court found as well that Husband's ability to support a third person during the marriage was evidence of his ability to pay spousal support. Moreover, the court determined that Wife could not be rehabilitated and that this was not an appropriate case for transitional alimony. The court therefore ordered Husband to pay Wife alimony in futuro in the amount of $1, 800 per month.

         Concerning Wife's reasonable attorney's fees, the trial court ordered Husband to pay same as an award of alimony in solido. Wife's attorney was directed to submit an affidavit regarding attorney's fees. Finally, the court instructed Husband to maintain life insurance in the amount of $500, 000 for Wife's benefit in order to secure his alimony obligation.

         On May 19, 2016, Wife filed a motion seeking approval of the amount of her attorney's fees, supported by an affidavit from her attorney. Husband filed a response in which he argued that Wife's motion was insufficient. The parties thereafter entered a stipulation regarding the total amount of fees paid by Wife to her attorney during the pendency of the case. This stipulation was incorporated into a final order entered by the court on June 23, 2016, in which the court directed Husband to pay $35, 710 toward Wife's attorney's fees. Husband timely appealed.

          II. Issues Presented

         Husband presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by reducing the total value of Wife's portion of the distribution of marital assets by an amount of unproven liabilities.
2. Whether the trial court erred by determining that Husband dissipated marital assets in the amount of $65, 000, subsequently increasing Husband's total value of the distribution of marital assets by such amount.
3. Whether the trial court erred by ordering Husband to pay alimony in futuro when the parties' adult daughter was living with Wife.
4. Whether the trial court erred by awarding to Wife alimony in futuro in the amount of $1, 800 per month.
5. Whether the trial court erred by requiring Husband to maintain life insurance for the benefit of Wife in the amount of $500, 000.
6. Whether the trial court erred by crediting the testimony of Wife's expert rather than Husband's expert with reference to the value of Wife's defined benefit plan.
7. Whether the trial court erred by determining the values of certain marital assets in amounts different from that established by undisputed testimony.
8. Whether the trial court erred by awarding to Wife attorney's fees in the amount of $35, 710 when Wife had paid a portion of this amount before trial and the attorney's affidavit was insufficient to support the award.
9. Whether the trial court's errors warrant a new trial.

          III. Standard of Review

         In a case involving the proper classification and distribution of assets incident to a divorce, our Supreme Court has elucidated the applicable standard of review as follows:

This Court gives great weight to the decisions of the trial court in dividing marital assets and "we are disinclined to disturb the trial court's decision unless the distribution lacks proper evidentiary support or results in some error of law or misapplication of statutory requirements and procedures." Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such, when dealing with the trial court's findings of fact, we review the record de novo with a presumption of correctness, and we must honor those findings unless there is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position than this Court to observe the demeanor of the witnesses, the weight, faith, and credit to be given witnesses' testimony lies in the first instance with the trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequently, where issues of credibility and weight of testimony are involved, this Court will accord considerable deference to the trial court's factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial court's conclusions of law, however, are accorded no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).

Furthermore, as this Court has previously held:
Because Tennessee is a "dual property" state, a trial court must identify all of the assets possessed by the divorcing parties as either separate property or marital property before equitably dividing the marital estate. Separate property is not subject to division. In contrast, Tenn. Code Ann. § 36-4-121(c) outlines the relevant factors that a court must consider when equitably dividing the marital property without regard to fault on the part of either party. An equitable division of marital property is not necessarily an equal division, and § 36-4-121(a)(1) only requires an equitable division.

McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140, at *3-4 (Tenn. Ct. App. Apr. 16, 2010) (internal citations omitted). See also Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of marital property "ordinarily defer to the trial judge's decision unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence.").

This Court has previously explained with regard to valuation of assets:
The value of marital property is a fact question. Thus, a trial court's decision with regard to the value of a marital asset will be given great weight on appeal. In accordance with Tenn. R. App. P. 13(d), the trial court's decisions with regard to the valuation and distribution of marital property will be presumed to be correct unless the evidence preponderates otherwise.
The value of a marital asset is determined by considering all relevant evidence regarding value. The burden is on the parties to produce competent evidence of value, and the parties are bound by the evidence they present. Thus the trial court, in its discretion, is free to place a value on a marital asset that is within the range of the evidence submitted.

Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987) (internal citations omitted).

         Regarding alimony, our Supreme Court has "repeatedly and recently observ[ed] that trial courts have broad discretion to determine whether spousal support is needed and, if so, the nature, amount, and duration of the award." See Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). The Court further explained:

[A] trial court's decision regarding spousal support is factually driven and involves the careful balancing of many factors. As a result, "[a]ppellate courts are generally disinclined to second-guess a trial judge's spousal support decision." Kinard [v. Kinard], 986 S.W.2d [220, ] 234 [(Tenn. Ct. App. 1998)]. Rather, "[t]he role of an appellate court in reviewing an award of spousal support is to determine whether the trial court applied the correct legal standard and reached a decision that is not clearly unreasonable." Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second-guess a trial court's decision absent an abuse of discretion. An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice. This standard does not permit an appellate court to substitute its judgment for that of the trial court, but "'reflects an awareness that the decision being reviewed involved a choice among several acceptable alternatives, ' and thus 'envisions a less rigorous review of the lower court's decision and a decreased likelihood that the decision will be reversed on appeal.'" Henderson [v. SAIA, Inc., ], 318 S.W.3d [328, ] 335 [(Tenn. 2010)] ...

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