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Wagoner-Angelin v. Angelin

Court of Appeals of Tennessee, Knoxville

August 29, 2017

MARY WAGONER-ANGELIN
v.
RANDALL JON ANGELIN

          Assigned on Briefs July 3, 2017

         Appeal from the Circuit Court for Hamilton County No. 12-D-1291 L. Marie Williams, Judge

         This appeal concerns post-divorce matters pertaining to a marital dissolution agreement ("the MDA") and a parenting plan. Mary Wagoner-Angelin ("Mother") filed a petition seeking modification of the parenting plan against ex-husband Randall Jon Angelin ("Father") in the Circuit Court for Hamilton County ("the Trial Court"). Father filed an answer and counterclaim challenging the alimony provision in the MDA. Mother later amended her petition to include allegations of civil contempt for Husband's alleged failures to abide by the MDA and parenting plan. After a trial, the Trial Court, inter alia, found Father in contempt. Father appeals to this Court. We affirm the Trial Court in its determination that Father is bound by the provisions of the MDA. We affirm the Trial Court in its finding an upward deviation for the parties' daughter Rachel's private school tuition. Regarding the other issues, we remand with instructions. The judgment of the Trial Court therefore is affirmed, in part, vacated, in part, and remanded for further proceedings consistent with this Opinion.

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

          William H. Horton, Chattanooga, Tennessee, for the appellant, Randall Jon Angelin.

          Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee, Mary Wagoner-Angelin.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Andy D. Bennett and Kenny W. Armstrong, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Mother and Father were married in April 1997. Two children were born of the marriage: Barbara, born in December 1997, and Rachel, born in July 2000. Barbara reached majority age by the time of trial in this matter. Mother and Father divorced in October 2012. The divorce decree incorporated the MDA and a permanent parenting plan. The following provisions of the MDA are in dispute on appeal:

2.1. Alimony. Husband shall pay to Wife the sum of One Thousand Five Hundred Dollars ($1, 500.00) per month beginning the first day of the month following the entry of the Final Decree of Divorce in this matter, as non-modifiable alimony for a period of ten (10) years. Such alimony payments, and any adjusted alimony payments as herein provided, shall be taxable to the Wife and deductible to the Husband for Federal and state income tax purposes. All unpaid alimony payments for the period stated in and pursuant to this paragraph shall terminate upon Wife's death but not upon Husband's death or the remarriage of Wife. In the event of Husband's death prior to the expiration of the nine-year period of alimony, Wife will be treated as a secured creditor for any claim for the remaining alimony due for the nine-year period of alimony, which remaining alimony shall be paid by Husband's estate over any remaining alimony term as herein provided. Husband and Husband's estate shall not be required to pledge any assets or take any action to make Wife a secured creditor.

***

Husband and Wife own real estate located at . . ., Ooltewah, Tennessee 37363 ("the Marital Residence" herein). The parties agree that the Marital Residence shall be the separate property of the Wife with all right, title and interest in that real property being divested out of the Husband and vested solely in the Wife. Wife agrees to pay to Husband the sum of Thirteen Thousand Five Hundred Dollars ($13, 500.00) for his one-half (1/2) of the equity in the Marital Residence. The Husband shall execute any and all documents, including but not limited to a Quit Claim Deed, to his interest in said real property. The Wife shall be responsible for all liabilities on the real property located at that address and will indemnify and hold the Husband harmless thereon.
Wife shall make every effort to refinance the Marital Residence within three (3) to five (5) years of the entry of the Final Decree of Divorce in this matter.
Husband shall be responsible for resolving the flooding issues of the Marital Residence and will ensure that a termite inspection and treatment for termites in the Marital Residence is completed within six (6) months of the filing of the Final Decree of Divorce in this matter.
Husband shall also be responsible for the repair and stain of the deck and porch at the Marital Residence as well as the repair and stain of their children's wooden jungle gym within one (1) year of the entry of the Final Decree of Divorce in this matter.

         Under the terms of the parenting plan, Mother was designated primary residential parent of the two children. Father was ordered to pay $1, 000 per month in child support, including an upward deviation to account for a portion of the children's private school tuition. Educational decisions, non-emergency healthcare, religious upbringing, and extracurricular activities were to be joint decisions between the parents. Uncovered reasonable and necessary medical expenses were to be shared between the parents on a pro rata basis. Further, the parenting plan provided: "As additional child support, Father shall pay fifty percent (50%) of the extracurricular activity expenses incurred for the children's benefit."

         In January 2015, Mother filed a petition for modification of the permanent parenting plan, alleging a material change of circumstances arising from Father's notice of intent to relocate to Oregon. In March 2015, Father filed his answer and counterclaim, challenging his alimony obligation under the MDA in light of Mother's increased earning ability since the divorce. Father also requested that the younger child be allowed to move with him to Oregon, with the older child to remain in Chattanooga. In July 2015, Mother requested leave to amend her petition for modification to assert several claims of contempt against Father. The Trial Court granted the motion to amend. This case was tried in April 2016.

         Mother testified. Mother, a social worker, received her master's degree in 2012. Mother testified that Father failed to pay her one half of $4, 013.99 she had incurred for the children's extracurricular activities. Mother testified that she also had incurred $4, 641.51 in medical expenses, and that Father owed her half of that, as well. When asked if she knew why Father was not paying her, Mother stated: "He told me that he didn't feel like he needed to pay that."

         On cross-examination, Mother testified regarding extracurricular activities as follows:

Q. In fact, if you look at the parenting plan on page -- I think it's page - on Page Four, any decisions regarding extracurricular activities had to be a joint decision. Is that correct?
A. Yes.
Q. And then if there was a joint decision on it, then paragraph one under child support said that he would pay 50 percent?
A. Yes.
Q. So you had no problem with that for awhile?
A. Yes.
Q. And I believe you told me that these additional extracurricular activity fees that you're now seeking to recover, that he only quit paying those when he said he was not agreeing on extracurricular activities anymore. Is that correct?
A. Yeah. He sent me an email, I believe, that said he wasn't paying any more of the extracurriculars.
Q. He wasn't agreeing to those extracurricular activities?
A. He said he wasn't paying. That's all. I mean, these are activities they've always done, so I don't know -- he didn't say that specifically like that.
Q. Well, didn't you tell me that your list of extracurricular activity charges was only after he said he was not agreeing anymore to extracurricular activities?
A. When he said he wouldn't pay anymore?
Q. Well, maybe we're quibbling over words.
A. Okay.
Q. Let's look at Page 32 and see -- make sure that I'm not remembering it incorrectly. On Page 32, my question was on Line Four: But he was definitely telling you I'm not agreeing to it anymore. And you said yeah, right. So everything you've listed on here is what you've paid since he said I'm not agreeing anymore. And your answer was what, on Line Nine? What was your answer on Line Nine?
A. Yes.

         Mother testified further regarding flooding problems at her home:

Q. Isn't it true, Mrs. Wagoner-Angelin, that the only thing you discussed with him at the time he signed this agreement was that he would build this diversion mound on the driveway? He had already started that, in fact, had he not?
A. No to the first part of your question, yes to the second part. The reason that it ended up in the divorce decree, this has been a big issue for me because for years I would tell him to deal with it and he never did. That's why it was specifically in there. As a matter of fact, I told him that because this has been such a problem for us for years that we needed it in the divorce decree. But his idea he told me was we need a bigger bump. That's the answer. But what his -- what had previously been done is he made a mound in the back yard and then the grates like they were without any consulting of anybody to be able to address the issue. So that is why it has been in the divorce decree, because it's been a problem, ongoing problem, for years. It didn't just start. We do not live in a flood plain or anything like that.
Q. Well, what I'm asking you is, he had already done some work before.
You said he had installed pipes before.
A. And the mound.
Q. He had already installed pipes before he started building the mound, correct?
A. Oh, the pipes were built years ago.
Q. Yeah, earlier.
A. Right.
Q. He had done that?
A. Yes.
Q. Okay. And then the only thing you discussed with him at the time he signed this agreement to, quote, "resolve the flooding problem" was to build this ...

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