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Yuhasz v. Yuhasz

Court of Appeals of Tennessee, Nashville

May 24, 2018

SHARON K. YUHASZ
v.
JOSEPHD. YUHASZ

          April 11, 2018 Session

          Appeal from the Chancery Court for Williamson County No. 43271 Deanna B. Johnson, Chancellor

         Husband appeals the trial court's decision regarding wife's monthly need for spousal support and its division of the parties' marital assets. Wife asserts that the trial court erred in failing to hold that husband dissipated marital assets. We affirm the decision of the trial court and conclude that wife is entitled to an award of her attorney fees on appeal.

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

          Michael T. Fort, Franklin, Tennessee, for the appellant, Joseph D. Yuhasz.

          Amy J. Farrar, Murfreesboro, Tennessee, for the appellee, Sharon K. Yuhasz.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         Sharon K. Yuhasz ("Wife") and Joseph D. Yuhasz ("Husband") married in October 1982 when they were both twenty-three (23) years old. They were married for thirty-four years and had two children. Wife stayed home with the children and supported Husband's career during most of the marriage. Husband and Wife lived separately beginning in 2003 after Wife discovered pornographic pictures of Husband's female friend on the family computer. At the time of trial, Husband and Wife were both fifty-seven (57) years old.

         On June 19, 2014, Wife filed a complaint for divorce on grounds of inappropriate marital conduct and irreconcilable differences. In his answer, Husband admitted irreconcilable differences but denied the allegations regarding inappropriate marital conduct. He requested that the court dismiss Wife's petition or award the divorce to him. Husband also filed a motion to compel Wife to participate in a vocational assessment and evaluation. Although she agreed in her initial answer to participate in the vocational assessment, Wife filed an amended response to Husband's motion to compel in which she stated that she did not agree to submit to the vocational evaluation and assessment. In an order entered on September 24, 2015, the trial court "decline[d] to find Tennessee Rule of Civil Procedure 35 provides the Court authority to require Wife's participation [in the vocational evaluation]." In order "to allow the vocational expert necessary data for evaluation, the Court direct[ed] Husband [that] he may submit to Wife any necessary Interrogatories necessary to allow the vocational expert to perform assessment and report."

         Husband filed a counter-complaint for divorce on November 25, 2015, in which he alleged grounds of irreconcilable differences and inappropriate marital conduct. Wife answered denying inappropriate marital conduct.

         The case was tried on September 19, 2016. The court heard testimony from Wife and Husband, and counsel for Husband submitted the deposition of Dana M. Stoller, Husband's vocational expert. The court took the case under advisement and entered a thirty-eight-page memorandum and opinion on December 13, 2016, which includes detailed findings of fact and conclusions of law. The trial court declined to accept the vocational specialist's findings or report based upon its finding that "the information provided to the specialist was not sufficient." The trial court granted Wife a divorce on grounds of inappropriate marital conduct and adultery. The court found the value of the combined net marital assets to be $2, 146, 114.80 and divided the marital property between the two parties. The small amount of debt would be satisfied with equal portions of the parties' shares of the proceeds when the properties were sold. After analyzing all of the statutory factors, the trial court determined that Husband would pay Wife alimony in futuro in the amount of $4, 500 per month until either he or Wife dies or Wife remarries. The court also awarded Wife alimony in solido of $41, 961.00 to cover her attorney fees.

         Husband filed a motion to alter or amend or for additional findings of fact. In an order entered on April 7, 2017, the trial court granted Father's motion to alter or amend and amended its December 13, 2016 order to require Husband to pay Wife's remaining attorney fees as of the final divorce decree.

         Husband appeals and raises the following issues:

(1) Whether the trial court erred by, sua sponte, excluding the expert testimony of Dana Stoller, after the conclusion of the final hearing, without prior notice to the parties.
(2)Whether the trial court erred in calculating Wife's monthly need for spousal support.
(3)Whether the trial court erred in its division of the parties' assets by virtue of its consideration of facts not in the record, mathematical error, and its award to Wife of Husband's Fidelity 401(k) retirement plan.

         Wife asserts that the trial court erred in failing to hold that Husband dissipated marital assets. She also argues that she is entitled to her attorney fees on appeal.

         Analysis

         I. Vocational Expert.

         Husband asserts that the trial court erred by, sua sponte, excluding the expert testimony of Dana Stoller, after the conclusion of the final hearing, without prior notice to the parties.

         The trial court has discretion regarding the admissibility, qualifications, relevancy, and competency of expert testimony. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). We review a trial court's decision to admit or exclude expert testimony under an abuse of discretion standard. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005). An abuse of discretion occurs when a trial court "applies an incorrect legal standard or reaches an illogical or unreasonable decision that causes an injustice to the complaining party." Id. (citing State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002)). The admission of expert proof by the trial court is governed by Rules 702[1] and 703[2] of the Tennessee Rules of Evidence.

         It is important to review what happened at trial with regard to the vocational expert deposition at issue here. After Wife and Husband completed their testimony, counsel for Husband announced that his only additional proof was the deposition of Ms. Stoller for proof "which has been filed with the Court."[3] Counsel for Wife then made several arguments concerning the relevance of Ms. Stoller's deposition. For example, she stated that Ms. Stoller did not take into account Wife's current job and that the potential jobs Ms. Stoller listed were all "hypothetical." Counsel for Husband made counter-arguments, and the court then moved on to closing arguments. Counsel for Husband did not move for the deposition to be admitted into evidence, and it does not appear on the list of exhibits.

         In order to complete her evaluation of Wife, Ms. Stoller relied on Wife's responses on a questionnaire and her interrogatory responses. In its memorandum and order detailing its decision in this case, the trial court found that "the information provided to the specialist was not sufficient." Therefore, the trial court "respectfully decline[d] to accept the specialist's findings or her Report." The record on appeal does not include the questionnaire, the questionnaire responses, the interrogatories, or the interrogatory responses upon which Ms. Stoller relied. We, therefore, have no basis upon which to conclude that the trial court abused its discretion in excluding Ms. Stoller's deposition testimony and report from consideration in this case.

         II. Spousal Support.

         Husband next argues that the trial court erred in calculating Wife's need for spousal support as a result of its refusal to consider the vocational expert testimony, failure to consider Wife's support of three adults in her residence, and its sua sponte increase of Wife's need above her stated need at trial.

         Trial courts have broad discretion to determine the type, amount, and duration of alimony. Mayfield v. Mayfield, 395 S.W.3d 108, 114 (Tenn. 2012); Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011); Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004). Recognizing that a trial court's award of spousal support is factually driven and results from the balancing of many factors, appellate courts generally refuse to second-guess a trial court's alimony decision unless there has been an abuse of discretion. Gonsewski, 350 S.W.3d at 105 (citing Kinard v. Kinard, 986 S.W.2d 220, 234, 235 (Tenn. Ct. App. 1998)). "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." Id. (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011)).

         As we have already addressed and rejected Husband's argument regarding the vocational expert, we will proceed to his argument that the trial court erred in calculating Wife's need for spousal support because it failed to take into account that the parties' adult children had been living in Wife's home rent free. The basis for this argument is Tenn. Code Ann. § 36-5-121(f)(2)(B), which provides:

In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that: (i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the ...

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