CYNTHIA M. KANKA
Assigned on Briefs April 3, 2017
from the Chancery Court for Marshall County No. 17176, 17177
J. B. Cox, Chancellor No. M2016-01807-COA-R3-CV
appeal arises from a judgment of divorce and an award of
damages in tort. The trial court awarded the wife an absolute
divorce and full custody of their minor child. After
determining that the husband was willfully and voluntarily
underemployed, the court set child support based on his
earning capacity rather than his actual gross income. Then,
the court classified, valued, and divided the marital
property and awarded the wife both alimony in futuro and
alimony in solido. The court also granted the wife a judgment
for compensatory damages on her tort claim. On appeal, the
husband challenges the court's determination that he is
willfully and voluntarily underemployed, the valuation of the
marital residence, the alimony awards, and the award of
damages in tort. After careful review, we vacate the
court's award of damages to the wife for her child's
pain and suffering. In all other respects, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Vacated in Part
F. Bloom (on appeal), Nashville, Tennessee, for the
appellant, Christopher Kanka.
Mack Bryant, Columbia, Tennessee, for a the appellee, Cynthia
Neal McBrayer, J., delivered the opinion of the court, in
which John W. McClarty and Arnold B. Goldin, JJ., joined.
NEAL MCBRAYER, JUDGE
Chancery Court Proceedings
November 5, 2014, after a 24-year marriage, Cynthia Kanka
("Wife") filed a complaint for an absolute divorce
from Christopher Kanka ("Husband") in the Chancery
Court for Marshall County, Tennessee. Wife's divorce
complaint also included a claim for damages in tort based on
allegations of domestic abuse. The couple had one minor
child, Veronica, who was sixteen at the time of the divorce
same day, Wife petitioned the Marshall County General
Sessions Court for an order of protection from Husband on
behalf of herself and her daughter. The general sessions
court issued an ex parte temporary order of protection and,
based on the pending divorce action, transferred jurisdiction
to chancery court.
November 12, 2014, the chancery court approved an agreed
order setting pendente lite support and continuing the
temporary protective order indefinitely. The court also
ordered Husband to deposit all employment income into the
parties' joint checking account so that Wife could pay
the family expenses. Husband was allowed to withdraw a
specified amount twice a month for his personal expenses. On
April 14, 2016, after Husband stopped making the required
deposits, the court issued a new order requiring Husband to
pay $2, 500 each month for spousal and child support pending
the final hearing.
Juvenile Court Action
same day Wife filed her divorce complaint, the Tennessee
Department of Children's Services ("DCS") filed
a petition in the Juvenile Court for Marshall County,
Tennessee, to adjudicate Veronica dependent and neglected and
for a restraining order, based on allegations of domestic
abuse. Preliminarily, the juvenile court, with the consent of
both parents, granted temporary custody of Veronica to Wife
and enjoined all contact with Husband unless recommended by
the child's counselor.
DCS presented its proof at the adjudicatory hearing, the
parents stipulated that Veronica was dependent and neglected.
Although Husband did not admit wrongdoing, he agreed that
there was sufficient evidence to support a finding by clear
and convincing evidence that the child was dependent and
neglected. The juvenile court found the stipulation to be in
Veronica's best interest and also found, by clear and
convincing evidence, that Veronica was dependent and
neglected for the reasons set forth in the petition. The
court granted full custody to Wife and restrained Husband
from any contact with the child. The court also ordered
Husband to complete a series of steps before seeking to
resume contact. The juvenile court then transferred
continuing jurisdiction to the chancery court.
PROOF AT TRIAL
chancery court held a one-day trial on May 19, 2016. Both
Husband and Wife testified. The court also heard testimony
from a clinical psychologist, the guardian ad litem from the
juvenile court action, and the DCS case investigator.
and Wife married on December 29, 1990, in Michigan. While the
couple was living in Michigan, Wife was employed as an
executive assistant, and Husband worked for General Motors.
When their daughter was in first grade, they decided to move
to Tennessee to be closer to Husband's parents. Husband
transferred to the GM facility in Spring Hill, Tennessee. But
the couple agreed that instead of seeking new employment
after the move, Wife would be a full-time homemaker. For the
next eleven years, although Husband worked in different GM
facilities, each spouse continued their respective roles as
wage earner and homemaker. When Wife filed for divorce,
Husband was employed as a quality supervisor at GM's
Spring Hill facility earning $7, 051 each month.
testified that the marriage was always rocky. "It
wasn't a picture perfect marriage, and as time went on I
just kept making excuses for poor behavior." Husband was
a heavy drinker and verbally abused Wife when drinking. At
times, his behavior would improve, but "at the very end
it just got more violent than I could handle."
2013, Wife was injured in a car accident. After the accident,
because Wife was unable to perform her household duties at
the level Husband demanded, the abuse escalated. Wife gave
examples of Husband's violent behavior, including
breaking dishes, shoving, shouting insults, and shaking his
fist in her face. On one occasion, Husband "head
butted" their daughter, and when Wife intervened,
Husband punched her hard enough to break a rib. After the
broken rib incident, Wife confided in a neighbor, who
reported the abuse to DCS. Then, as Wife explained,
"everything kind of happened in a whirlwind."
recommendation of DCS, Wife and daughter participated in
individual and family counseling. LuCinda Pincince, a senior
psychological examiner who specialized in trauma, testified
that both Wife and daughter reported being verbally,
emotionally, and physically abused by Husband. Ms. Pincince
diagnosed Veronica with chronic adjustment disorder with
anxiety and Wife with chronic adjustment disorder with
depression and anxiety.
part, Husband denied any physical abuse. But he acknowledged
stipulating that Veronica was dependent and neglected.
she filed for divorce, Wife sought employment outside the
home and was hired as a manager at a local grocery store. At
the time of trial, she was earning $2, 131 per month working
full time. But Wife's earnings covered less than half of
her reported expenses.
Wife obtained the protective order, Husband moved in with his
parents in Florence, Alabama. According to Husband, his work
performance at the Spring Hill facility began to suffer, and
on August 31, 2015, he was placed in a personnel improvement
program. Husband claimed that from this point forward his
work was never deemed ...