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Kanka v. Kanka

Court of Appeals of Tennessee, Nashville

January 25, 2018


          Assigned on Briefs April 3, 2017

         Appeal from the Chancery Court for Marshall County No. 17176, 17177 J. B. Cox, Chancellor No. M2016-01807-COA-R3-CV

         This 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.

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

          Thomas F. Bloom (on appeal), Nashville, Tennessee, for the appellant, Christopher Kanka.

          Wesley Mack Bryant, Columbia, Tennessee, for a the appellee, Cynthia M. Kanka.

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Arnold B. Goldin, JJ., joined.





         1. Chancery Court Proceedings

         On 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 filing.

         On the 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.

         On 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.

         2. Juvenile Court Action

         On the 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.

         After 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.

         B. PROOF AT TRIAL

         The 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.

         Husband 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.

         Wife 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."

         In 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."

         At the 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.

         For his part, Husband denied any physical abuse. But he acknowledged stipulating that Veronica was dependent and neglected.

         After 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.

         After 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 ...

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