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McKay v. McKay

Court of Appeals of Tennessee, Nashville

February 7, 2018

ALECIA GAYNELL KING McKAY
v.
MICHAEL PATRICK McKAY

          Session October 5, 2017

         Appeal from the Chancery Court for Williamson County No. 37745 Deanna B. Johnson, Chancellor

         This post-divorce action primarily involves a provision in the parties' marital dissolution agreement ("MDA") concerning disposition of the marital residence. The parties were divorced in 2011. The wife filed a petition in March 2015, seeking, inter alia, to enforce the divorce decree and MDA by obtaining an order requiring the husband to vacate the marital residence so that she could reside there with the parties' minor child and her three foster children. The MDA provides that the wife is to retain sole and exclusive possession of the marital residence until it is sold while the husband is to deposit one-half of the monthly mortgage payment into the wife's personal checking account each month "in lieu of" spousal support. The MDA also provides that the marital residence would not be placed on the market for sale until January 1, 2013, but it does not supply a deadline by which the parties would have to place the home on the market. At the time that the wife commenced this action, the wife had vacated the home, and the husband had been residing there for approximately one year. Following a bench trial conducted in May 2016, the trial court granted the wife's petition to enforce the MDA, entering an order directing the husband to vacate the marital residence immediately and to make needed repairs to the home. The court also found that a purported post-divorce oral agreement between the parties for the husband to purchase the wife's share of the marital residence had not constituted a valid contract. Crediting the husband with $12, 000.00 he had paid to the wife toward purchase of the marital residence as payment toward a spousal support arrearage, the trial court ordered the husband to pay additional spousal support arrears at a rate of $300.00 per month and to pay the wife's attorney's fees. Specifically at issue on appeal is a provision the trial court included in the order, directing that the wife, the parties' minor child, and the wife's three foster children could remain in the marital residence until the parties' minor child, who was then eleven years of age, graduated from high school or became otherwise emancipated. Also finding that the husband had behaved in a harassing and intimidating manner toward the wife, the trial court granted the wife's request for a restraining order in part, limiting the number of times each day the husband could text the wife and his minor child. Seeking to have the provision at issue set aside, the husband filed a motion to alter or amend the judgment, which the trial court denied. The husband has appealed. Having determined that the trial court's order impermissibly modified the MDA by creating an extended timeframe for sale of the marital residence not originally contemplated by the parties, we vacate the provision in the judgment allowing the wife to remain in the residence until the parties' minor child graduates from high school or is otherwise emancipated. Inasmuch as the husband has raised this sole issue on appeal, we expressly do not disturb the remainder of the trial court's judgment. We remand for further proceedings consistent with this opinion.

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

          E. Covington Johnston, Jr., Franklin, Tennessee, for the appellant, Michael Patrick McKay.

          Shawn P. Sirgo, Fairview, Tennessee, for the appellee, Alecia Gaynell King McKay.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The petitioner, Alecia Gaynell King McKay ("Wife"), and the respondent, Michael Patrick McKay ("Husband"), were divorced by entry of final decree in the Williamson County Chancery Court ("trial court") on December 6, 2011. Two children had been born to the marriage, one an adult daughter at the time of the divorce, and the other a son, Q.M., who was then six years of age. In addition, Wife had three foster daughters residing with her, a nine-year-old and a set of eight-year-old twins. The parties entered into the MDA and a permanent parenting plan providing for Q.M.'s care, both of which were approved by the trial court and incorporated into the final decree. The permanent parenting plan provided that Husband would pay $606.00 per month to Wife for Q.M.'s support. According to the trial court's findings in its memorandum opinion and order in the instant action, the foster children had remained with Wife since the divorce and continued to reside with her throughout the proceedings.

         Wife commenced the instant action when she filed a petition to enforce the divorce decree, hold Husband in contempt, and obtain a restraining order against Husband on March 19, 2015. In her petition, Wife sought, inter alia, an order requiring Husband to vacate the marital residence so that she could reside there with Q.M. and her foster daughters (collectively, "the Children"), as well as Wife's mother, M.K. At the time of the petition's filing, Wife, M.K., and the Children were residing in a rented, smaller home in Maury County, and the Children were in danger of losing thespecial needs schooling programs they were enrolled in within Williamson County.

         It is undisputed that according to the MDA, Wife was to retain sole and exclusive possession of the marital residence until it was sold, and the residence was not to be placed on the market for sale until January 1, 2013, unless otherwise agreed by the parties in writing. Pending sale of the marital residence, Husband was to deposit one-half of the monthly mortgage payment, or $800.00, [1] into Wife's personal checking account each month. The MDA includes the following provision regarding the marital residence in relevant part:

The parties and Wife's mother own a marital residence located at . . . Galloway Drive, Franklin. [M.K.], Wife's mother is a mortgage holder, along with the parties. Pursuant to the Agreed Order of September 20, 2010, Wife shall continue to have sole and exclusive possession of the marital residence until it is sold. Pending the closing of the sale of the marital residence, Husband shall pay to Wife, by direct deposit into her checking account, one-half of the mortgage indebtedness payment due and owing each month on the property and furnish her one-half of said payment no later than five (5) days before the payment is due, with the exception of November and December, 2011 and the January 2012 payment, of which Husband shall be responsible for paying Wife One Thousand Dollars ($1, 000.00) for each of those payments, for a total of $3, 000.00, payable November 20, 2011, December 20, 2011, and January 20, 2011 [sic], all by direct deposit. The obligation to pay Wife monthly, pursuant to this paragraph is hereby in lieu of alimony to Wife.
* * *
The parties agree that the property shall not be placed on the market for sale until January 1, 2013, unless otherwise agreed on by the parties, subsequent to the entry of the Final Decree of Divorce, in writing. The parties shall either place the property on the market for sale by owners or mutually agree upon a real estate agent to sell the property. In the event the parties mutually agree upon a real estate agent, the parties shall follow the advice of the agent concerning the listing price, and the acceptance of offers to buy, and the making of offers to sell. At the closing of the sale of the property, after the payment of real estate commission, insurance, any taxes due on property, and any indebtedness encumbering the property, the parties will share the net equity proceeds equally, except that Wife shall be entitled to Three Thousand Two Hundred ($3, 200.00) dollars from Husband's one-half net proceeds. Each party shall sign whatever documents are necessary to list the house for sale, and that are required to be executed at the closing of the sale. Neither party will incur any further indebtedness encumbering the property, and in the event that a lien exists on the property at the time of sale, the lien shall be paid by the party incurring or responsible for the indebtedness causing the lien.

         Following entry of the divorce decree, Wife resided in the marital residence with the Children and M.K. until July 2013. During that timeframe, Husband resided in Texas. Wife testified during trial that she moved out of the marital residence in July 2013 because Husband had been harassing her regarding her parenting of Q.M. According to Husband's testimony, however, Wife desired to relocate because she was having problems with the homeowners' association and could not afford to maintain the residence.

         It is undisputed that when Wife vacated the marital residence in July 2013, the parties orally agreed that Husband would pay Wife between $40, 000.00 and $45, 000.00 to purchase her interest in the residence. Husband paid Wife a total of $12, 000.00 in three payments made between October 2013 and March 2014. On March 27, 2014, Wife drafted a handwritten receipt, presented as an exhibit during trial, which stated the following:

I, Alecia McKay, have received from Michael McKay $12, 000 so far, to date, March 27, 2014. This amt. is payment toward the purchase of the [marital residence].

         The receipt was not signed by Husband. Husband acknowledged during trial that he made no further payments toward Wife's interest in the marital residence beyond the $12, 000.00 memorialized by Wife's receipt.

         Husband resided alone in the marital residence for approximately one year from October 2013 to October 2014. The parties' adult daughter and her fiancé subsequently moved into the marital residence with Husband until they were married in April 2015. At the time of trial, Husband resided in the marital residence by himself. The home had not been placed on the market, and M.K.'s name was still on the deed. The trial court noted in its memorandum and order that the parties had taken the mortgage loan out in M.K.'s name because the parties had been unable to qualify for a home loan.[2] According to the trial court's findings, at the time of the divorce decree's entry, the marital residence was appraised for $350, 000.00 but required repairs estimated at approximately $35, 000.00 to $40, 000.00 in order to be ready for sale. At that time, the parties owed approximately $216, 000.00 on the mortgage. At the time of the trial court's July 2016 order in the instant action, the marital residence had been appraised for $420, 000.00 without functioning air conditioning, and the mortgage reflected an outstanding debt of approximately $205, 000.00.

         Regarding Husband's alleged harassment of Wife, Wife attached a collection of text messages to her petition, demonstrating that Husband's messages were often threatening and laced with profanity and that Husband often sent several messages within a short timeframe. Wife asserted in her petition that she had agreed to sell her interest in the marital residence "[u]nder duress and in an effort . . . to stop [Husband's] ongoing abuse . . . ." She further asserted that the MDA had never been amended to reflect an agreement for sale of her interest. Wife also averred that Husband owed "in excess of $4, 000.00" in arrears on child support, had collected insurance payments for water damage to the marital residence stemming from an air conditioner malfunction without making the corresponding repairs, and had made telephone calls to the Williamson County School System specifically to inform officials that Q.M. no longer resided in Williamson County. Wife further stated in her petition that she had requested and received a grace period during which the Children would be able to stay in Williamson County schools while Wife sought to reestablish residence ...


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