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Tooley v. Tooley

Court of Appeals of Tennessee, Nashville

March 8, 2018


          Session: December 6, 2017

         Appeal from the Circuit Court for Sumner County No. 2014-CV-1366 Joe Thompson, Judge

         In this divorce, the husband appeals the trial court's award of alimony in futuro, the amount of alimony awarded, and the allocation of marital debt. Concluding that the evidence does not preponderate against the trial court's findings and that the trial court did not abuse its discretion in applying relevant legal principles, we affirm.

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

          Thomas F. Bloom, Nashville, Tennessee, for the appellant, Charles Joseph Tooley.

          Melanie R. Bean, Lebanon, Tennessee, for the appellee, Pamela M. Howey Tooley.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.




         Charles Joseph Tooley ("Husband") and Pamela M. Howey Tooley ("Wife") were married on February 19, 1991. At the time of trial, they had one minor child from the marriage, Noah, born in January 2000, and one adult child who is severely disabled, Caitlyn, [1] born in February 1994.[2] After twenty-three years of marriage, Husband filed for divorce on two grounds. He also filed a petition seeking a conservatorship for Caitlyn, which the trial court consolidated with the divorce action. Wife filed an answer and counter-complaint based on three grounds.

         Contemporaneously with filing her answer, Wife filed a motion seeking pendente lite support, adoption of her temporary parenting plan, exclusive use of the marital home, and an order requiring Husband to make certain repairs to the home. The trial court entered an agreed order on May 14, 2015, in which the parties agreed that Husband would have access to the marital home, make specified repairs to the marital home, and pay Wife $250.00 per week. The parties further agreed that Wife would receive Caitlyn's Supplemental Security Income ("SSI") benefit in the amount of $733.00 per month and would be responsible for food, fuel, clothing, and school expenses, as well as the minimum payments on the credit cards listed in her name.

         The trial court heard the case on November 10, 2016. As a preliminary matter, the court heard from the guardian ad litem ("GAL") in the conservatorship action. The GAL described Caitlyn as "emotional, " explaining that she has outbursts and "throws fits" when there are disruptions to her schedule, such as when strangers come into the home. In regard to Caitlyn's level of disability, the GAL stated that she "has the ability to do some things, but she needs help with a lot of things." For example, she needs help getting dressed because "certain items of female clothing can be a challenge for her" and, while Caitlyn is capable of feeding herself, she is unable to prepare her own meals. The GAL reported that Caitlyn is "semi-verbal" but difficult to understand. When asked by the trial court about Caitlyn's need for daily supervision, the GAL responded that "she basically needs to have an adult with her at all times."

         At the time of trial, Husband was fifty-eight years old. He has a high school diploma and works as a service technician for Cushman & Wakefield earning $22.15 per hour. He testified that he has worked for Cushman & Wakefield for seventeen years and does not anticipate any promotions or pay raises. According to Husband, the parties struggled financially throughout the marriage. He was the sole financial provider for the family and worked as much overtime as possible. Seven years prior to trial, the parties discussed Wife obtaining employment in order to assist the family financially. Husband explained that Wife considered enrolling in an online program to learn how to do medical billing or medical transcription so she could work from the home; however, she did not pursue this training during either the marriage or the parties' two-year separation.

         Husband agreed that Caitlyn needed someone to take care of her. He testified that Noah, not Wife, usually acted as Caitlyn's primary caregiver because Wife exercised three or four hours per day. During cross-examination, however, he admitted that the only care he knew that Noah provided for Caitlyn was assisting Wife in the tasks of cooking breakfast, changing the television channel, and turning on Caitlyn's iPad. Husband admitted that he had only gone to the marital residence to visit with Caitlyn and Noah a maximum of fifteen times between January and November of 2016. He acknowledged that he needed to visit Caitlyn more consistently so she could become more comfortable with his visits.

         Finally, Husband testified that Wife amassed over $20, 000 in credit card debt. He stated he was unaware of the amount of the debt or the number of credit cards Wife had been using until discovery. Husband attributed the large debt to Wife's shopping addiction. He introduced into evidence photographs of closets full of clothing, some still in wrappers, and shopping bags full of more clothes that still had the sales tags on them.

         Wife was forty-seven years old at the time of trial. She attended college for three years but did not graduate. Prior to the marriage, Wife worked at Toys R Us earning $6.00 per hour. During the marriage, she did not work outside the home. Instead, she acted as the primary caregiver for the parties' children. Wife testified that she homeschooled Noah and served as Caitlyn's primary caregiver. In December 2011, Wife was diagnosed with breast cancer. Although she had no active cancer at the time of trial, she was still undergoing reconstructive treatment. She denied having a shopping addiction, explaining that most of the clothes in the photographs submitted by Husband were items she had gathered for a consignment sale. She stated that the photographs were taken close to Christmas and the items with tags still on them were purchased as presents for their children.

         Wife admitted that, during the marriage, she and Husband discussed her completing online classes for medical billing or medical transcription. According to Wife, she completed paperwork with a career institute to take the online classes and then asked Husband to pay for them, but he refused. Wife stated that she inquired about Pell grants to pay for the classes and learned that she did not qualify "because of income." After Husband filed for divorce, Wife again researched online classes for medical billing or medical transcription. She testified that, even if she took the online classes, there was no guarantee that she would obtain employment that would permit her to work from home. She further testified that she could not work outside of the home because she needed to care for Caitlyn at home.

         Wife explained that she could not hire someone to watch Caitlyn because Caitlyn does not respond well to strangers or unfamiliar situations. She agreed with the GAL's description of Caitlyn's response to strangers and attributed the emotional outbursts to Caitlyn's need for "structure and routine." To avoid emotional outbursts, Wife must prepare Caitlyn days in advance before deviations in her routine occur, such as attending dental appointments. Wife prepares Caitlyn by talking to her beforehand and relaxing her by persuading Caitlyn "to color pictures for people." Despite this preparation, Caitlyn sometimes still has emotional outbursts when her routine is altered. Wife explained that Caitlyn's outbursts also can sometimes occur in response to simple matters such as dressing her: "If you go to get her dressed - go get her to get her clothes on, she may throw it back at you. . . . She'll get upset so sometimes you just have to walk away and then come back and try again, walk away, come back and try it again." Finally, Wife stated that, even if Caitlyn did not respond negatively to strangers or unfamiliar situations, she still could not hire someone to watch Caitlyn because she could not afford to do so.

         The trial court entered a final decree of divorce on February 22, 2017. In the final decree, the trial court appointed Wife as the conservator of Caitlyn, established her as the primary residential parent, and adopted her proposed parenting plan, pursuant to which Father had eighty days of parenting time per year. The court found that Caitlyn is "severely disabled" as contemplated by Tenn. Code Ann. § 36-5-101(k)(2)[3] and ordered Husband to pay $1, 140 per month in child support. The trial court awarded Wife the marital residence, stating that she would be responsible for the $95, 466.57 mortgage associated with the property. In regard to the parties' marital debt, the court ordered that Wife would be responsible for $5, 240 of credit card debt and Husband would be responsible for the remaining marital debt, which was $48, 000.[4] Wife would also be responsible for a separate debt in the amount of $41, 840.[5] Finally, the trial court awarded Wife alimony in futuro in the amount of $1, 300 per month.

         On appeal, Husband presents the following issues for our review: whether the trial court abused its discretion (1) in awarding Wife alimony in futuro, (2) in determining the amount of alimony, and (3) in requiring Husband to pay the consumer credit card debts incurred by Wife.

         Wife presents only one issue: whether she should be awarded her attorney fees incurred on appeal.


         Our review of the trial court's findings of fact is de novo with a presumption that the findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Nelson v. Nelson, 106 S.W.3d 20, 22 (Tenn. Ct. App. 2002). Evidence preponderates against the trial court's findings of fact when it "support[s] another finding of fact with greater convincing effect." Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 3537467, *4 (Tenn. Ct. App. June 23, 2016) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000)). We review a trial court's conclusions of law de novo, according them no presumption of correctness. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Nelson, 106 S.W.3d at 22.

         A trial court has "broad discretion to determine whether spousal support is needed and, if so, its nature, amount, and duration." Owens v. Owens, 241 S.W.3d 478, 493 (Tenn. Ct. App. 2007). As the Tennessee Supreme Court has explained:

[A] trial court's decision regarding spousal support is factually driven and involves the careful balancing of many factors. Kinard v. Kinard,986 S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v. Robertson,76 S.W.3d 337, 340-41 (Tenn. 2002). As a result, "[a]ppellate courts are generally disinclined to second-guess a trial judge's spousal support decision." Kinard, 986 S.W.2d at 234. Rather, "[t]he role of an appellate court in reviewing an award of spousal support is to determine whether the trial court applied the correct legal standard and reached a decision that is not clearly unreasonable." Broadbent v. Broadbent,211 S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second-guess a trial court's decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice. Wright ex rel. Wright v. Wright,337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an appellate court to substitute its judgment for that of the trial court, but "'reflects an awareness that the decision being reviewed involved a ...

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