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McBroom v. McBroom

Court of Appeals of Tennessee, Jackson

June 21, 2017

TERRY JOE McBROOM
v.
KELLY LORETTA FOLKERTS McBROOM

          Submitted on Briefs February 2, 2017

         Appeal from the Chancery Court for Shelby County No. CH-15-700 Jim Kyle, Chancellor

         In this divorce case, Terry Joe McBroom appeals the trial court's award of alimony in futuro to Kelly Loretta Folkerts McBroom in the amount of $980 per month for three years or until Husband began drawing his retirement pension. The trial court ordered that once Husband began drawing his pension, which the parties agree will happen no later than April of 2019, the amount of spousal support will be reduced to $720. The court further ruled that Husband's support obligation would cease when Wife began drawing Social Security benefits. Finding no abuse of discretion, we affirm.

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

          Jeffrey Jones, Bartlett, Tennessee, for the appellant, Terry Joe McBroom.

          William A. Cohn, Cordova, Tennessee, for the appellee, Kelly Loretta Folkerts McBroom.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         The parties were married on April 17, 1999. It was the second marriage for each. They had grown children from their prior marriage. No children were born to their union. Husband filed for divorce on May 26, 2015.

         The trial took place on May 3, 2016. The witnesses were the parties and Wife's son. Husband was 55 years old at the time of trial. He had worked for the City of Memphis for 32 years as a heavy equipment operator. Husband was not in good health, having previously suffered from leukemia and a heart attack, among other health issues. He elected to retire no later than April of 2019. The parties agreed that this retirement decision was irrevocable. He earned $56, 892 in 2015, and he projected that he would earn $58, 804 in 2016.

         Wife was 53 when this case was heard. She worked for most of this seventeen-year marriage, but had been unemployed since April of 2012. In the mid-2000s, she had an accident and broke her leg in five places. As a consequence of her injuries in the accident, Wife developed an addiction to pain medication. Later, in September of 2013, she was in a car accident and suffered another serious leg injury. She testified that the prescription medications were insufficient to control her pain. In early 2015, she began using heroin. At trial, Wife stated that she had gone to inpatient drug treatment. She was attending AA meetings and trying to stay clean and sober. She testified that she earned a small income cleaning a couple of houses. Wife's statement of income and expenses filed shortly before trial showed an income of $185 per month and expenses of $1, 972, a monthly deficit of $1, 787. She testified that she had applied for Social Security disability benefits and had been denied, but also indicated that a decision about her eligibility for such payments was still pending at time of trial.

         At the conclusion of the trial, the court orally stated its decision, dividing the marital estate and awarding Wife alimony in futuro. Husband has not appealed the trial court's division of the marital estate. Regarding the alimony award, the trial court initially stated it would order Husband to pay 20 percent of his gross monthly income, explaining as follows:

[S]tarting in January of '17, the husband is to pay 20 percent of his gross payment, the gross salary. It's forty-nine hundred now. I'm not going to put a number on it. I'm just going to say he needs to pay 20 percent to his wife until she ‒ that's either of his gross payment and, if he retires, for instance, and that goes down, then the payment goes down.
***
In April '19, that amount is going to go down because she's going to get 20 percent of his monthly pension check until she is eligible for Social Security, either Social Security benefits based on age or Social Security benefits based upon health conditions. In other words, if she gets a disability payment ‒ let's say for some reason she gets her disability approved next month, this gentleman doesn't pay anymore. I mean that's just the way that works. She ages in at sixty-two and gets Social Security benefits, he doesn't pay anymore. It's over at that time. It's either 20 percent of his paycheck, gross paycheck, or 20 percent of his pension amount.

         Husband's counsel objected, stating, "I think there's a line of cases that you can't set support by percentage." The trial court responded, "If you feel that I need a motion to reconsider, then you'll show me the case law on that." After Husband's counsel did exactly that, the trial court agreed with his argument that a support award based on a percentage of the obligor's income was inappropriate. The court then modified its ruling.

         On May 27, 2016, the trial court entered its final judgment, which ...


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