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Disterdick v. Disterdick

Court of Appeals of Tennessee, Knoxville

June 18, 2018

DESIREE DANIELS DISTERDICK
v.
JOHN DISTERDICK Asset: Proceeds from sale of marital residence Awarded to Wife: $24, 541.66 Awarded to Husband: Liability: Assessed to Wife: Assessed to Husband:

          Session February 22, 2018

          Appeal from the Circuit Court for Hamilton County No. 12D184 L. Marie Williams, Judge

         In this divorce action presenting issues concerning the classification and distribution of the parties' assets, the trial court determined that an oil and gas investment purchased during the marriage was the wife's separate property, as was her engagement ring. The trial court fashioned an equitable distribution of the parties' marital property and debts and denied the wife's claim for alimony. In doing so, the trial court excluded any consideration of assets formerly owned by the parties that were held by a trust at the time of trial. The husband has appealed. Discerning no error, we affirm.

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

          Stephen S. Duggins, Chattanooga, Tennessee, for the appellant, John Disterdick.

          Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Desiree Daniels Disterdick.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         This appeal involves the trial court's distribution of marital assets and debts as a result of the parties' divorce. The plaintiff, Desiree Disterdick ("Wife"), filed a complaint for divorce in the Hamilton County Circuit Court ("trial court") on January 17, 2012. The parties were married in 1986 and have five children of the marriage. In addition, Husband had one child from a prior relationship.[1] Wife alleged that she and the defendant, John Disterdick ("Husband"), were experiencing irreconcilable differences or, in the alternative, that Husband was guilty of inappropriate marital conduct. Wife sought, inter alia, an award of alimony as well as the trial court's equitable distribution of the parties' marital estate.

         On February 15, 2012, Husband moved the trial court for an order directing Wife to disburse $5, 000.00 to him from a trust fund to enable Husband to retain an attorney. Husband asserted that Wife and her mother were the trustees of the fund, of which Husband and Wife were equal beneficiaries. According to Husband, Wife had recently refused to deposit his share of the trust income into their joint account. Husband claimed that his only regular monthly income was $1, 525.00 in Social Security benefits; $198.00 from the Screen Actors' Guild; and approximately $400.00 in sales commissions. On March 9, 2012, the trial court entered an order directing Wife to pay $2, 500.00 from marital funds to Husband's attorney. The court noted that at the final hearing, the court would consider the amounts paid to each party's attorney and the source of those funds when distributing the parties' marital property.

         On May 10, 2012, Husband filed a motion seeking to replace the trustee of the Toluca Park Square Trust ("the Trust") and to transfer control of the Trust and another investment, the Soladino investment ("Soladino"), to an independent third party. Husband asserted that he had originally established the Trust from his separate, premarital assets in 1989. Husband claimed that he had also "located, initiated and funded" Soladino, which was an oil and gas investment. According to Husband, although Wife and her mother were named as the trustees of the Trust several years prior, he had historically managed the affairs of the Trust. Husband also claimed that he primarily had managed the business of Soladino, despite the fact that it was held in Wife's name. Husband asserted that when Wife decided to file for divorce, she prevented Husband from continuing to manage these investments and refused to distribute Husband's portion of the income from these investments to him. Husband alleged that Wife had also ignored tax responsibilities and other obligations with respect to these assets. Husband requested that the court transfer control of these investments to an independent third party.

         Husband also filed an answer and counterclaim on May 17, 2012, reiterating his position concerning the Trust and Soladino. Husband asserted that he was seventy years of age and retired, with little income independent of these investments. Husband again asked the trial court to transfer administration of the Trust and Soladino to a third party and to consider Wife's dissipation of these assets in its ultimate distribution of property.

         On June 5, 2012, Judge Jeffrey Hollingsworth entered an order recusing himself from this matter. Husband subsequently filed a motion seeking alimony pendente lite on June 28, 2012. In this motion, Husband stated that such alimony might be unnecessary if the trial court granted his motion regarding transfer of the administration of the Trust and Soladino. Husband filed a statement of income and expenses, demonstrating that although his monthly expenses averaged $3, 620.00, his total monthly income was only $2, 191.00.

         On February 7, 2013, Husband filed a renewed motion seeking to replace Wife as the trustee of the Trust. In this motion, Husband stated that the parties had reached a temporary resolution of this matter but that Wife refused to authorize her attorney to sign the resultant order. A subsequent mediation was attempted on April 3, 2013, with no settlement achieved. Thereafter, on April 4, 2013, Husband filed yet another motion seeking Wife's replacement as trustee of the Trust as well as an award of alimony pendente lite.

         Husband filed a subsequent motion on August 15, 2013, seeking the trial court's approval regarding a pending contract for sale of the marital residence. The court approved the sale of the marital residence in an order dated October 14, 2013. Relative thereto, the court directed that certain debts would be paid from the proceeds of the sale of the home, with the remaining net proceeds to be deposited into the registry of the court.

         On February 18, 2014, Husband filed a motion requesting that the trial court direct Wife to resume paying Husband's automobile insurance, as well as the automobile insurance for the parties' adult children, as she had in the past. Husband asserted that Wife had listed this expense on her statement of expenses and relied upon same as a basis for maintaining control over Soladino. Husband also alleged that Wife had ceased paying the mortgage payments on the parties' parcels of unimproved real property known as the "Shelter Cove lots, " such that this property was in danger of foreclosure. Husband further sought an award of sanctions against Wife.

         On March 27, 2014, the trial court, with Judge L. Marie Williams now presiding, entered an order directing that $2, 000.00 being held in escrow (as a result of a prospective buyer failing to close the sale of the marital residence) be applied toward the overdue mortgage payments for the Shelter Cove lots. The court also awarded a sanction of $1, 000.00 to be charged against Wife at the time of the final judgment's entry. On March 17, 2016, Wife filed a motion seeking to withdraw funds for payment of fees and improvements related to the Shelter Cove lots from the monies on deposit with the court from the sale of the marital residence. The court granted this motion, noting the parties' agreement thereto, by order dated March 31, 2016.

          On April 28, 2016, Wife filed a motion, pursuant to Tennessee Rule of Civil Procedure 12.03, seeking judgment on the pleadings concerning issues related to the Trust. Wife asserted that the Trust was the owner of the Trust assets while Husband and Wife were merely income beneficiaries. Wife further averred that because the parties no longer owned the Trust corpus, and because the Trust was not a party to these proceedings, the trial court could neither divide the Trust property nor in any way reform the Trust as Husband sought in his counterclaim. The trial court subsequently granted this motion by order dated May 27, 2016.

         On June 24, 2016, Wife filed an income and expense statement, claiming monthly income of $2, 500, 00 and monthly expenses of $4, 393.00, resulting in a monthly shortfall of $1, 893.00. Wife also filed an asset and liability statement along with her proposed division of marital assets. On her asset statement, Wife listed "Soladino Energy Partners" as her separate property, valuing same at $25, 000.00. Husband filed an updated income and expense statement, demonstrating that he had sufficient monthly income to pay his current expenses of $4, 634.00 with no funds remaining.

         Following a continuance of the parties' trial date, Wife filed a motion for contempt on July 22, 2016, alleging that Husband had encumbered the parties' Porsche automobile in violation of the statutory injunction. On August 4, 2016, Wife filed a motion requesting that the trial court require Husband to make the payments for the Shelter Cove lots pending trial. Wife alleged that she had been making those payments from her separate funds. The court entered an order on August 17, 2016, requiring Husband to pay the respective lot payments for August and September 2016.

         Both parties subsequently filed proposed asset distributions. Wife again valued Soladino at $25, 000.00 and identified the asset as her separate property. Husband listed this asset as marital property valued at $250, 000.00.

         The trial court conducted a bench trial on October 4, 2016, regarding the issues of property classification and distribution, Wife's claim for alimony, and Wife's allegation of contempt. The court found that the parties had been married since 1986 and had five adult children. The court noted that Husband was born in 1942 and that Wife was born in 1960. The court further noted that prior to the marriage, Wife acquired an associate degree and earned income from beauty pageants and public appearances. At the time the parties were married, Wife owned a bank account containing $30, 000.00 and had invested in certain stock. During the marriage, Wife completed a bachelor's degree in finance. The court found that Husband was employed in the film industry prior to the marriage. At the time of trial, Husband was receiving social security benefits of $1, 595.00 per month.

          According to the trial court's findings, the parties experienced "many interpersonal difficulties throughout most of the marriage with evidence of physical and emotional abuse by the Husband against the Wife. However, there is evidence to establish that he 'mellowed out' in the last ten years or so." The court noted that the downturn in the economy, specifically the oil industry, had brought the parties to divorce. The court further found that the parties depended on the income derived from Soladino, which had recently lost most of its income-producing capability due to falling oil prices. Therefore, the parties could no longer afford the lifestyle to which they had become accustomed. The court also addressed the fact that the Trust, of which the parties were beneficiaries, was not a marital asset.

         The trial court explained that before the marital property could be distributed, the property had to be properly classified. The court found that the evidence "overwhelmingly" established that Soladino was Wife's separate asset. The court also found that the value of Soladino had decreased substantially, such that it should be valued at $42, 000.00. The court determined that Wife's jewelry, an art print, and a fur coat were also her separate property and that certain items of personalty were Husband's separate property. The remaining items of property were found to be marital and were distributed as follows:

Asset: Proceeds from sale of marital residence
Awarded to Wife: $24, 541.66
Awarded to Husband:

Shelter Cove lots

$169, 000.00

Wife's Regions Bank account

1, 500.00

Wife's EPB Credit Union account

64.99

Husband's EPB Credit Union account

9, 700.86

USAA

309.98

1998 Ford van

1, 500.00

2005 Nissan Murano

3, 000.00

2009 Saturn Vue

6, 200.00

1981 Porsche

102, 000.00

Stuffed eagle

3, 000.00

Scrimshaw Whale's Tooth (2)

1, 150.00
1, 150.00

Antique Persian rug

4, 000.00

Generator

500.00

Furnishings (in possession of each)

5, 000.00
5, 000.00

Film Equipment

600.00

Total:[2]

$140, 456.65
$197, 760.84

          The trial court then distributed the parties' marital debt as follows:

Liability:
Assessed to Wife:
Assessed to Husband:

Mortgage - Shelter Cove lots

$124, 000.00

Property tax - Shelter Cove lots

1, 484.00

Chase credit card

$9, 000.00

Wife's attorney's fees

30, 000.00

Husband's attorney's fees

25, 000.00

Ashley Furniture

1, 100.00

Total:[3]

$40, 100.00
$150, 484.00

         The trial court determined that Wife had paid most of the marital expenses as well as expenses for the parties' adult children during the pendency of the litigation. The court also found that any amounts expended for the parties' adult children were gifts to those children. Pursuant to an Agreed Order entered on January 7, 2013, Wife received all of the income from Soladino and each party received one-half of the trust income pending trial. [4] The court found that Wife had received at least $330, 993.00 in income from Soladino during the pendency of the divorce proceedings, which income the court determined to be Wife's separate property because it found Soladino to be Wife's separate property. Wife also received $137, 000.00 in marital income. During the same time period, the court found that Husband received about $200, 000.00 in income.

         The trial court also determined that Wife had utilized approximately $42, 000.00 of her separate assets to preserve the marital residence and Shelter Cove lots, which were marital assets. The court thus added $40, 000.00 to the assets allocated to Husband. Because Wife contributed marital and separate funds to maintain the household and pay joint bills during the pendency of the litigation, the court expressly found the above distribution to be equitable.

         With regard to the statutory factors contained in Tennessee Code Annotated § 36-4-121, the trial court found that the parties' marriage was of substantial duration. The court noted that it had considered and addressed the parties' ages, health, vocational skills, and other related factors. The court further found that Wife did have greater employability than Husband at the time of trial and that all remaining factors should be equally weighted.

          Concerning alimony, the trial court determined that because the parties' respective needs and abilities to pay were substantially equal, alimony would not be awarded. The court also declined to impose sanctions upon Husband for his violation of the statutory injunction due to the encumbrance placed on the Porsche automobile.

         On January 13, 2017, Husband filed a motion seeking additional findings and/or alteration of the trial court's judgment, arguing that the court had failed to address the matter of the parties' boat as well as additional loans listed on Husband's liability statement. Five days later, the trial court entered a "Final Decree, " incorporating its earlier order and declining to address Husband's motion. On February 9, 2017, Wife filed a motion to alter or amend, asserting that the trial court should (1) require Husband to take any action necessary to remove Wife from the liability associated with the Shelter Cove lots, (2) require Husband to have the lien removed from the Porsche, (3) award the parties' boat to Wife, and (4) amend the decree to reflect that funds on deposit with the clerk's office from the sale of the marital residence actually totaled $23, 493.40 and should be released to Wife immediately.

         The trial court entered an order regarding the motions on March 7, 2017, wherein it awarded the parties' boat to Wife while requiring Husband to pay any lien he had placed thereon. Finding that Wife had utilized her separate funds to support the family and pay joint obligations, the court also ordered that Husband was to be solely responsible for any loans he owed to individuals. The court further ordered Husband to take action to have Wife's name removed from the debt on the Shelter Cove lots and to have the lien on the Porsche released. The court amended the Final Decree to reflect that Wife would receive $23, 493.40 in monies on deposit with the court clerk's office and ordered those funds to be released to Wife within thirty days. Husband timely appealed.

         II. Issues Presented

         Husband presents three issues for our review, which we have restated slightly:

1. Whether the trial court erred by classifying Soladino and the diamond ring as Wife's separate property.
2. Whether the trial court erred by failing to divide the parties' marital property equitably.
3. Whether the trial court erred by excluding any consideration of issues related to the Trust.

         Wife presents the following additional issues, which we have also restated slightly:

4. Whether Husband's appeal should be dismissed for failure to comply with Tennessee Rule of Appellate Procedure 7.
5. Whether the trial court erred by determining that the amounts expended by Wife for the parties' adult children during the litigation, pursuant to the January 7, 2013 order, were gifts to those children.
6. Whether the trial court erred by failing to award Wife alimony in solido to reimburse her for Husband's half of payments made ...

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