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Slocum v. Slocum

Court of Appeals of Tennessee, Nashville

October 24, 2017

AMY JO SLOCUM
v.
JAMIE DON SLOCUM

          Session May 17, 2017

         Appeal from the Circuit Court for Wilson County No. 2015-DC-258 Clara Byrd, Judge.

         This is a divorce case. Jamie Don Slocum appeals the trial court's division of the marital estate and the trial court's award of rehabilitative support to his spouse, Amy Jo Slocum. Husband argues that the trial court erred in finding that he dissipated marital assets (1) before the parties' separation and (2) during the pendency of the divorce. Husband also asserts that wife has an earning capacity higher than the $1, 449 per month found by the trial court. Wife posits that the trial court's findings of fact are correct and supported by the preponderance of the evidence. She argues, however, that her spousal support award of $1, 264 per month until May 31, 2025, should be classified as transitional support rather than rehabilitative. We hold that the trial court's judgment with respect to spousal support should be modified to reflect that her support award is in the nature of transitional spousal support. As modified, the trial court's judgment is affirmed.

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

          Derrick H. Green, Mt. Juliet, Tennessee, for the appellant, Jamie Don Slocum.

          Misty Lavender Foy, Murfreesboro, Tennessee, for the appellee, Amy Jo Slocum.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         The parties were married on October 17, 1998. Two daughters were born to their marriage, ages twelve and nine at the time of the divorce. The parties separated on May 20, 2015 after wife learned of husband's affair. She filed her complaint two days later. On June 5, 2015, wife filed a motion for support pendente lite. The trial court heard the motion on July 24, 2015. Both parties testified at the hearing but there is no transcript in the record. The trial court found "[t]hat Husband's testimony about his income, his tax returns, his trips to California, and his girlfriend, [is] not truthful." The court ordered husband to pay support pendente lite of $800 every two weeks, and also "to pay for any and all extracurricular activities, school supplies, registration fees, and any other school-related expenses for the children within two weeks of receiving notice from [wife]." Wife later filed two motions for contempt, on August 21, 2015, and May 4, 2016, alleging that husband had not paid support as ordered by the trial court.

         On May 12, 2016, at the beginning of trial, the parties stipulated and agreed to a permanent parenting plan designating wife primary residential parent of the children and granting husband 114 days per year of residential parenting time. They further stipulated, for purposes of calculating child support, that husband's gross monthly income was $5, 533, and that wife's was $1, 449. Under the child support guidelines worksheet, this agreement resulted in a child support order requiring husband to pay $1, 006 per month. The case was tried on the remaining issues of division of the marital estate and wife's request for spousal support and attorney's fees. At the end of the two-day trial at which the parties were the primary witnesses, the trial court found that husband "does, in fact, make, and his earning capacity is, $5, 533 per month." The court found wife's earning capacity to be approximately $1, 449 per month. Regarding wife's education, the court stated "that [w]ife is well educated and trained because she was a kindergarten teacher before she became a stay-at-home mom." Addressing husband's argument that it should have found wife to have a higher earning capacity, the trial court held as follows, in pertinent part:

the [c]ourt does not find that [wife] is underemployed. Wife testified her reasons for working this job, and she is the primary residential parent and has to provide for the children the majority of the time, and thus, she is unable to work the hours or number of jobs necessary to make more than that at this time because of the two minor children who are living in the home. More specifically, in order for Wife to get recertified teaching, she would have to go back to school for approximately two (2) years, Wife testified that this was not a viable option at this time. Instead, Wife testified that she has taken a job with American Airlines and has tried to set her hours around the time that she is primary residential parent. She further testified that, at American Airlines, there is room for advancement, she can pick up additional shifts, and she receives far greater benefits than she would if she went back to teaching, including, but not limited to, flights, and really good insurance.
The [c]ourt finds that it would not be practical for Wife to get any other job or to go back to school because she's still responsible for the minor children. The [c]ourt further finds that Wife is earning just about as much as she could make outside the home with the time available.
The [c]ourt further finds that Husband is out of town a lot. Husband testified that he makes an average of twenty (20) to thirty (30) trips out of town per year, and the evidence is absolutely there. During his travels, Wife is solely responsible for the children.

(Numbering in original omitted.)

         Regarding husband's dissipation of marital assets, the trial court found as follows:

The [c]ourt finds that Husband had an affair; Husband has not been truthful with the IRS; and that Husband has dissipated marital assets, as set forth more fully . . . below.
The [c]ourt does make a finding that Husband did dissipate some of the marital property. The [c]ourt cannot account for all of the dissipation because there are a lot of deposits.
The undisputed proof shows that Husband cashed out his Star Retirement on April 20, 2015 in the amount of $20, 204.00. The [c]ourt further finds that there was no reason to do so at the time because there was in excess of $50, 000.00 in the bank. The [c]ourt can only consider that this was done for the purpose of defeating the spouse's interest; there is no other credible reason for him to withdraw it except to defeat Wife's interest thereon. Husband's reasoning, which the [c]ourt did not find credible, was that the Wife had unknown credit card debt. However, Wife had attempted to pay the two credit cards, which together totaled approximately $10, 000.00 from the bank account that had a balance in excess of $50, 000.00, and Husband had the credit card companies refund the payments.
The [c]ourt finds that Husband's trips have gotten more and more expensive.
The [c]ourt finds that Husband did have a girlfriend, and there is no doubt that Husband had an affair. The [c]ourt finds that the testimony was that he admitted that he took his girlfriend on some trips with him at a time when he said his business was basically slow and he was not making money, yet he was going on these trips to make money in the future.

         The primary marital asset was the parties' residence, which, at the time of the divorce, they owned encumbrance-free. The stipulated value of the house was $259, 000. The parties reached a pre-trial agreement regarding the division of personal property, several relatively small bank accounts, wife's retirement account of $12, 000 from her former teaching job, and a couple of credit card debts in the approximate amounts of $5, 200 and $4, 300. After making extensive findings of fact pertinent to each applicable statutory factor, the trial court held as follows in dividing the marital estate:

         The [m]arital [h]ome is the children's residence. They have resided there since birth.

The minor children need to maintain residence at the [m]arital [h]ome in order to maintain the stability of the family and friends that they have grown up with. The minor children need to live in the same school district. Wife has testified that she wants to stay in the house, and maintain the children's stability there.
Husband has not been honest and truthful with the IRS about his income.
The [c]ourt finds that it would not be fair to make the Wife pay to the Husband fifty-percent (50%) of the equity in the [m]arital [h]ome because then she would have an additional payment.
Considering the factors of equitable distribution above, the [c]ourt finds that in this particular situation the equities would require this [c]ourt to award Wife seventy-five percent (75%) interest, or $194, 250.00, in the [m]arital [h]ome, and Husband twenty-five percent (25%) interest, or $64, 750.00, in the [m]arital [h]ome. The [c]ourt's primary objective is to keep the children in their home until they are old enough to go to college, and also due to the Husband's dissipation of the marital assets during the time of this marriage. The remaining division of assets is relatively a wash, since each's vehicles have little to no value, the bank accounts have little to no value, and the credit cards are relatively equal.

         At the beginning of trial, the parties stipulated that husband was in arrears on pendente lite support in the amount of $7, 616. Husband, perhaps prompted by the trial court's admonition during trial that "you better write her a check before we leave this courthouse today, or else you're going to jail for direct contempt, " did just that to get current on his support obligation, but remained in arrears for reimbursement to wife for the expenses of the children's extracurricular activities. Because husband had not timely met his support obligations, the trial court ruled that,

[p]er Tennessee Code Annotated 36-4-121, [1] the [c]ourt imposes a lien on Husband's share of the [m]arital [h]ome, as and for a security for the payment of child support and/or spousal support, to ensure future child support and spousal support payments, due to Husband's history not making payments in the pendente lite order.

         The trial court awarded wife spousal support in the amount of $1, 264 per month, which it classified as "rehabilitative alimony to allow her time to get on her feet." The court made this classification despite the parties' stipulation that wife was only requesting transitional and/or alimony in solido. Husband timely filed a notice of appeal.

         II.

         Husband raises the following issues, as quoted from his brief:

1. Whether the [trial court] erred in finding Husband dissipated ...

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