Assigned on Briefs July 3, 2017
from the Circuit Court for Hamilton County No. 12-D-1291 L.
Marie Williams, Judge
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.
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.
Michael Swiney, C.J., delivered the opinion of the court, in
which Andy D. Bennett and Kenny W. Armstrong, JJ., joined.
MICHAEL SWINEY, CHIEF JUDGE
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.
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."
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
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
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
Q. And then if there was a joint decision on it, then
paragraph one under child support said that he would pay 50
Q. So you had no problem with that for awhile?
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
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
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.
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
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
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.
Q. He had done that?
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 ...