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Rich v. Rich

Court of Appeals of Tennessee, Nashville

April 27, 2018


          Assigned on Briefs March 16, 2018

          Appeal from the Circuit Court for Davidson County No. 17D-715 Philip E. Smith, Judge

         This is an accelerated interlocutory appeal from the trial court's denial of the plaintiff's recusal motion. Following a review of the record and the trial court's ruling, we apply the de novo standard of review mandated by Supreme Court Rule 10B and affirm the judgment of the trial court.

         Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Circuit Court Affirmed

          Helen Sfikas Rogers and Eugene Frank Guerre, III, Nashville, Tennessee, for the appellant, Mariel Bentz Rich.

          Marissa A. Moses, Sadie Ramsey Davis, Lisa K. Helton, and Hunter C. Branstetter, Nashville, Tennessee, for the appellee, David Tate Rich, Jr.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and John W. McClarty, J., joined.



         I. Factual and Procedural Background

         The case underlying this appeal involves an amended complaint for divorce filed by Mariel Bentz Rich ("Wife") against David Tate Rich, Jr. ("Husband") in July 2017 following a five-year marriage. Husband answered the complaint and filed a counter-complaint for divorce. The parties have one child who was born in December 2014.

         Husband filed a motion seeking pendente lite parenting time in September 2017, and the trial court held a hearing on October 6, 2017, to consider this motion. The court issued an order on October 19, 2017, specifying the days of the week and the holidays when Husband would have time with the child. Wife filed a motion in December 2017 seeking pendente lite support and another motion in January 2018 to modify the scheduling order. The trial court held a hearing on February 2, 2018, to consider both of Wife's motions as well as some discovery disputes that are not relevant to this interlocutory appeal.

         After addressing the discovery issues, the trial court turned to Wife's motion for pendente lite support. The relevant portion of the transcript relating to this motion is as follows:

MS. ROGERS:[1] We had a motion for pendente lite support.
THE COURT: Uh-huh.
MS. RUSS:[2] Your Honor, I think our motion to set was next.
THE COURT: It's not ready to set.
MS. RUSS: Well, could we get a revised scheduling order as well?
THE COURT: I'll revise the scheduling order.
MS. RUSS: Okay. Can we do that?
THE COURT: We'll do that last.
MS. RUSS: Oh, okay.
THE COURT: All right.
MS. ROGERS: Your Honor, this -- as you now know, this case has been pending 11 months, and what we have had happen in this case is basically the husband -- if I can hand this up to you -- moved out --
THE COURT: Do you have an income and expense statement, Ms. Russ?
MS. RUSS: Yes, I provided it to --
MS. ROGERS: And I've got an updated one from my client, but what this exhibit that I'm handing up to you shows is that husband -- here's my client's -- husband was depositing his paycheck into the joint account, and he's basically stopped doing that now, Your Honor. He is paying very little, if anything, into the marital account. What he does is he puts in 2200 to cover his rent. And then he puts in enough to cover his Belle Meade country club. The utilities for the house are auto-drafted, and he's paying basically nothing else. I can hand up to you an example - Ms. Russ -- of the spend down or what he is now paying which is really very, very minimal. So Mr. Rich, first of all, is going to tell you on his income and expense statement he only makes 10, 000 a month. But that ignores the $25, 000 bonus he got in December and we don't know --
THE COURT: Let me cut right through this. What did your client make last year, report on tax returns? Do y'all have a copy of them?
MS. RUSS: These are the tax returns, Your Honor.
THE COURT: All right. Are they joint?
MS. RUSS: They are.
MS. RUSS: And I actually have a breakdown. Look, this will help Your Honor here.
THE COURT: Okay. (The Court reviews document.)
MS. RUSS: Your Honor, do you have the mutual release as well as that --(The Court reviews document.)
THE COURT: All right. Y'all have got 2016 --
MS. ROGERS: Your Honor, could I pass up just one more thing so you can --
THE COURT: Now, let me stop you.
THE COURT: I'm taking over this motion. All right. He made -- he's listing 171, 800 -- $171, 847 in income. Taxable interest: $30, 476. Ordinary dividends: $2, 922, capital gain: 190, 673. And rent, Royalty Partnerships -
MS. RUSS: Your Honor, that's hers.
THE COURT: -- Trust.
MS. RUSS: That's all hers.
THE COURT: 146, 087. For a total of $542, 005. All right. Is that 146, 087 hers?
MS. ROGERS: I think it is, Your Honor. I think the capital gain is hers. They each have trusts --
THE COURT: Now, wait a minute. Let me ask the questions, and we'll get through this a lot quicker.
MS. ROGERS: No problem. But hers have --
THE COURT: I tell you what. Ma'am, stand up. You have been sworn?
THE CLERK: She has.
THE COURT: Did you receive . . . $146, 087 last year?
MS. RICH: What was the line item?
THE COURT: Trust, Schedule E.
MS. RICH: My trust is a pass-through entity, and so it's reflected on our tax return. So the trust receives the money. I don't necessarily -- I didn't receive capital gains to use personally.
THE COURT: Now, I'm not talking about capital gains. I'm talking about the money -- not capital gains or loss. Not Schedule D. Schedule E.
MS. RICH: Right. I -- sorry. May I see a copy? I did not receive $146, 000 to use - -
MS. RUSS: There was a lot more.
MS. RICH: -- from my trust.
MS. ROGERS: Your Honor, it's like --
THE COURT: You say -- well, wait a minute. Whoa. She has a trust?
MS. ROGERS: She does.
THE COURT: Does she control it?
Ms. ROGERS: No. She is not the trustee.
THE COURT: Who is the trustee?
MS. ROGERS: Her father is the trustee.
THE COURT: All right. Did she receive $146, 000 last year?
Ms. ROGERS: And that's where she's hung up; the word "receive." It doesn't -- it doesn't -- it isn't paid to her. It's like a partnership where you pay -- where it passes through on your income. So --
THE COURT: So he's paying taxes on this trust?
MS. ROGERS: He is.
MS. RUSS: Correct.
THE COURT: Well, how -- what prevents that from becoming marital property?
MS. ROGERS: We're looking at that, Your Honor. We're also ...

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