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Masserano v. Masserano

Court of Appeals of Tennessee, Jackson

May 22, 2019


          Session April 10, 2019

          Appeal from the Circuit Court for Shelby County No. CT-001823-16 Jerry Stokes, Judge

         Husband and Wife both appeal the trial court's ruling with regard to alimony. Based on Husband's failure to adequately support his arguments with legal authority, his issues are waived. We affirm the trial court's decision to exclude Wife's affidavit of income and expenses. We vacate the trial court's alimony award and remand for the entry of an order that contains specific findings of fact as to Wife's need and Husband's ability to pay.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Vacated in Part; and Remanded

          Patrick Masserano, Collierville, Tennessee, Pro se.

          Adam N. Cohen, Memphis, Tennessee, for the appellee, Alyse Masserano.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, JJ., joined.




         The parties to this appeal, Defendant/Appellee Alyse Masserano ("Wife") and Plaintiff/Appellant Patrick Masserano ("Husband") married September 5, 1998.[1] On May 3, 2016, Husband filed a complaint for divorce in the Shelby County Circuit Court. Therein, Husband alleged that irreconcilable differences had arisen between the parties, and that the parties had been living separately for over two years. Both parties are law school graduates. Neither party was a licensed lawyer at the time of trial. Husband never worked as a lawyer; instead, he works in the financial sector. Wife worked for a few years as a lawyer following her licensure but had not worked since 2004; Wife's law license was placed on disability inactive status following the filing of the divorce complaint. Likewise, Husband has never practiced law but has consistently worked in banking and finance, and now has his own consulting business based in the United Kingdom.

         Following the filing of the complaint for divorce, protracted litigation between the parties ensued, including various disputes regarding temporary support and discovery. At one point, the litigation was stayed to allow Wife to seek intensive mental health treatment.[2] Finally, on January 26, 2018, the parties entered into a Partial Marital Dissolution Agreement ("PMDA") in which they stipulated to grounds for divorce and divided the marital estate.

         Therein, the parties agreed that Husband would continue paying the mortgage and taxes related to the parties' home in which Wife is still living.[3] The parties further agreed that they would each retain the personal property in their possession, their respective vehicles, and any bank accounts in their individual names. Moreover, Husband also agreed to pay Wife a lump sum of $15, 000.00, with a small portion of the amount payable at the time the PMDA was entered and the remaining balance payable at the time the final divorce decree was entered. Finally, Husband agreed to pay Wife "as a division of marital property . . . thirty thousand dollars ($30, 000.00) of Wife's attorney's fees directly" to Wife's attorneys. The PMDA explained that as a result of this payment, "Wife has agreed not to seek an additional lump-sum award of attorney's fees from Husband in this litigation." The parties agreed, however, that this provision "does not preclude either party from raising nor the Court from considering attorney's fees as a component of any alimony argument at a final hearing in regard to Wife's obligation to any outstanding fees owed to her counsel." Finally, the PMDA stated that issues related to the type, amount, and duration of alimony were reserved for a final hearing. As a result of this agreement, Wife was awarded over 80% of the marital assets, while Husband was obligated with a similar share of the marital debt.

         The trial court held its final hearing on June 1, 2018, in which the only remaining issue was alimony. At the hearing, the trial court heard testimony from the parties, as well as Wife's clinical psychologist, John Leite. Wife testified that although she worked as a lawyer following the parties' marriage, she and Husband agreed that she could terminate her employment in 2004. There is no dispute that Wife has not worked in any income-earning capacity since 2004.

         Wife and Dr. Leite both testified that Wife's psychiatric disorders largely prevent her from working currently and in the immediate future. According to Dr. Leite, Wife suffers from depression, bipolar disorder, and borderline personality disorder. Wife was previously treated as an inpatient for suicidal ideations and alcohol abuse. Although Dr. Leite only began treating Wife following the initiation of this litigation, he opined that she had been suffering from these disorders for nearly two decades. Based on this diagnosis, Dr. Leite testified that Wife was currently unable to work and, in fact, requires a few months of intensive in-patient dialectical behavior therapy, at a cost of approximately $30, 000.00 per month. Although Dr. Leite testified that Wife could eventually hold down a job, possibly even a high functioning job such as attorney, she would require intensive treatment and nearly perfect conditions to do so.

         During the trial, the trial court excluded Wife's affidavit of income and expenses following an objection that the document had not been timely provided in discovery; nevertheless, Wife testified extensively regarding her expenses, which she stated totaled well over $6, 000.00 per month. Wife's psychologist also testified that Wife owed approximately $7, 500.00 in fees for his services, not including time testifying. Wife testified that she was also required to pay for health insurance, but her testimony did not provide a figure. Husband testified that Wife's insurance costs $1, 160.00 per month, which he described as "outrageously expensive." Thus, the testimony concerning Wife's expenses was that they totaled well over $7, 000.00 per month.

         There was no dispute that Husband provided the only income to the family during the parties' twenty year marriage. In 2006 the parties moved to the United Kingdom so that Husband could work as an employee of Lloyd's of London. In 2014, Husband thereafter left that employment to start his own financial consulting firm.[4] In this capacity, Husband would work on a contractual basis for business entities. Based on Husband's employment alone, Wife submitted that the parties' enjoyed a lavish lifestyle during this time including frequent vacations.

         At trial, Husband's claimed current gross income of $13, 750.00 per month, a decrease in income from years past due to the loss of a significant client. Husband testified that he arrived at the figure after several deductions, including sales tax, overhead, business development costs, and corporate tax. Before these costs, Husband testified that his "revenue" is $21, 000.00 per month and that his income stems from a single contract. Husband testified that after personal taxes, he earns approximately $9, 625.00 per month. Considering his personal expenses of $10, 607.83 per month coupled with the obligations under the PMDA to pay the mortgage on the marital home and a portion of Wife's attorney's fees, Husband claimed that his current income could not support his expenses, resulting in a deficit of nearly $1, 000.00 prior to any consideration of long-term alimony.

         Wife did not credit Husband's assertion that he earned only $165, 000.00 per year. Wife questioned whether Husband was improperly excluding certain retained earnings from his business, whether the expenses of his business were overstated, and whether Husband was concealing certain payments from a previous client by deferring that income to 2018. As an example, Husband admitted that as late as 2017, he deducted the entire cost of his London flat from his gross income, by invoicing the cost to a client, thereby allegedly decreasing his income by $60, 000.00 per year.[5] Husband also admitted that his business paid other expenses on his behalf, such as vacations, that were not included in his calculation.

         Wife also argued that a yearly income of $165, 000.00 was not consistent with Husband's historical earnings. Husband's individual tax returns reflected combined income of $536, 379.00 in 2015, $250, 395.00 in 2016, and $188, 934.00 in 2017. Husband also testified that while his 2014 income tax forms indicated an income of $926, 425.00, this purported income was misleading because it included a deferred bonus, a year's pay, and a relocation package; [6] Husband submitted that his income from the years 2015 and 2016 were likewise artificially inflated. Husband's 2013 income was also high, at $632, 691.00, which Husband testified was a product of the exchange rate between American dollars and pounds.

         The trial court entered the final decree of divorce on July 5, 2018. The trial court applied the statutory factors found at Tennessee Code Annotated section 36-5-121, and determined that "Wife has a definite need for future alimony." Specifically, the trial court pointed out that Wife had not worked since 2004, and that Wife's ongoing mental health issues prevent her from working. In this regard, the trial court cited the testimony of Wife's doctor, who testified that Wife is bipolar and an alcoholic, and that Wife needs in-patient treatment. In contrast, the trial court pointed out that Husband has been successful in his consulting business and noted that in recent years, Husband has earned up to half a million dollars annually. Consequently, the trial court determined that the alimony factors favored Wife. As such, the trial court ruled that Wife was entitled to alimony in solido in the amount of $45, 000.00, to be paid at the rate of $2, 000.00 per month.[7] Further, the trial court found that Wife was entitled to alimony in futuro in the amount of $3, 500.00 per month.

         Husband thereafter filed a motion to alter or amend the final decree of divorce, raising several arguments. First, Husband asserted that the trial court failed to make sufficient findings of fact and conclusions of law to support its ruling.[8] Husband also asserted that there was insufficient evidence to support the trial court's conclusion that Wife was entitled to $3, 500.00 in alimony in futuro due to the exclusion of Wife's affidavit of income and expenses. Husband also argued that the alimony in futuro amount was in error due to Husband's inability to pay. Finally, Husband asserted that the trial court erred in awarding Wife alimony in solido to cover her attorney's fees, as such an award was prohibited by the parties' PMDA stating that Wife would not seek a lump sum award of attorney's fees.

         In an order entered August 27, 2018, the trial court granted in part Husband's motion to alter or amend. In particular, the trial court reduced the alimony in solido award such that Husband would not have to pay any attorney fees in addition to what was already agreed to by the parties in the PMDA. Thus, Wife was awarded $30, 000.00 in alimony in solido. The trial court, however, denied the motion to the extent of the remainder of Husband's arguments. Husband filed a notice of appeal with this Court on August 31, 2018.

         Standard of Review

         This case was resolved by bench trial. Under Rule 13 of the Tennessee Rules of Appellate Procedure, the trial court's findings of fact from a bench trial are reviewed "de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). We give "great weight to a trial court's factual findings that rest on determinations of credibility." Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App. 2005) (citing In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn. 1997)). A trial court's conclusions of law, however, are not entitled to a presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001).


         Husband's Issues

         Husband raises three issues in his brief concerning the alimony ordered in this case.[9] We must begin our analysis, however, by discussing the state of Husband's brief in this matter. Pursuant to Rule 27 of the Tennessee Rules of Appellate Procedure, briefs of appellants to this Court must include, inter alia,

(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages ...

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