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Pierce v. Pierce

Court of Appeals of Tennessee, Knoxville

June 21, 2019

CATHRYN HELRIGEL PIERCE
v.
SHERMAN LANE PIERCE

          Session April 17, 2019

          Appeal from the General Sessions (Domestic Relations) Court for Meigs County No. D-1660 Casey Mark Stokes, Judge

         In this divorce action, the Domestic Relations Court of Meigs County ("trial court") entered a "Final Judgment of Divorce" on June 21, 2018.[1] In this judgment, the trial court awarded to the wife, inter alia, possession of a parcel of marital real property improved with a mobile home, along with its associated mortgage indebtedness, and fifty percent of the marital portion of the husband's military retirement, or $481.11 per month. The trial court awarded to the husband, inter alia, a different parcel of marital real property improved with a mobile home and further ordered the husband to pay the wife's automobile loan obligation in the total amount of $22, 192.86. The trial court denied the wife's request for alimony of any type. The wife timely appealed. Following our thorough review of the record, we reverse the portion of the trial court's judgment denying an award of alimony and attorney's fees to the wife. Based upon our review of the evidence and the applicable statutory factors, we conclude that the wife is entitled to an award of alimony in futuro in the amount of $1, 600.00 per month. We further determine that the wife is entitled to an award of attorney's fees incurred at the trial court level as alimony in solido. We remand the issue of the amount of reasonable attorney's fees to be awarded to the wife to the trial court for entry of an appropriate award. We affirm the trial court's judgment in all other respects. Regarding the wife's request for an award of attorney's fees incurred on appeal, we determine that such request has been waived.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions (Domestic Relations) Court Affirmed in Part, Modified in Part, Reversed in Part; Case Remanded

          Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Cathryn Helrigel Pierce.

          Joshua H. Jenne, Cleveland, Tennessee, for the appellee, Sherman Lane Pierce.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The parties in this divorce action were married in June 1972. On March 13, 2017, the wife, Cathryn H. Pierce ("Wife"), filed a "Complaint for Legal Separation and/or Divorce from Bed and Board" against her husband, Sherman L. Pierce ("Husband"). Husband filed a separate divorce action a few days later. On April 7, 2017, the trial court entered an order consolidating the two divorce actions.

         On May 2, 2017, the trial court entered an agreed order, inter alia, allowing Wife to retrieve certain items of personalty from the former marital residence, directing Husband to continue paying various marital liabilities, and ordering Husband to pay to Wife $1, 000.00 per month as temporary support. Husband filed a statement of income and expenses on that same day, demonstrating a net monthly income of $6, 472.07 and monthly expenses of $4, 320.30. Wife concomitantly filed a similar statement, demonstrating a net monthly income of $398.00 and monthly expenses of $2, 419.60.

         On November 1, 2017, the trial court entered an order adding the parties' adult son, B.P., as a third-party defendant in this matter due to his status as a tenant in common with the parties related to the ownership of one parcel of real property. Also by that order, the trial court denied Wife's request for increased temporary support. Subsequently, on February 7, 2018, the trial court entered an order declaring the parties divorced pursuant to Tennessee Code Annotated § 36-4-129. All remaining issues were set for trial.

         The trial court conducted a bench trial on March 21, 2018, and thereafter entered a "Final Judgment of Divorce" on June 21, 2018. In its judgment, the trial court determined that the parties were the owners of three parcels of real property located in Meigs County. With regard to the first parcel, located at 5469 State Highway 60, the court found that the property was owned by the parties and B.P. as tenants in common. Pursuant to the parties' stipulation, the real property was valued at $36, 000.00. The court ordered that this property would be sold and the proceeds divided among the parties and B.P.

         With respect to the second parcel of real property, located at 632 Pierce Road, the trial court determined that the property would be awarded to Husband. The value of this tract, improved by a mobile home, was stipulated to be $63, 000.00. Concerning the third parcel of real property, located at 661 Pierce Road and improved by a mobile home, Husband contended that the value should be established at $140, 000.00 based upon the property's potential for subdivision. The court assigned a value of $90, 000.00 to the property at 661 Pierce Road in accordance with an appraisal provided as an exhibit during trial. The court awarded this property to Wife, finding that this was the residence where she had been residing with B.P., and ordered Wife to pay the associated mortgage indebtedness in the approximate total amount of $50, 000.00. The court also directed Wife to refinance the mortgage indebtedness or otherwise take steps to remove Husband's name from that debt obligation.

         The trial court divided the remainder of the parties' marital property according to a list attached to the judgment as Exhibit A. Although Wife was awarded her automobile, a 2015 Ford Escape, Husband was ordered to pay the automobile loan associated therewith in the total amount of $22, 192.86, to be paid in monthly installments.

         Each party was allowed to retain his or her respective Social Security retirement benefits, and Husband's income from the Veteran's Administration was awarded exclusively to him. With respect to Husband's military retirement benefits, the trial court found:

Husband receives military retirement in the amount of $1, 443.32 per month. Predicated on the stipulated proof and testimony at trial, the Court finds that Husband's military retirement is based upon 21 years of total military service, 14 of which transpired during the marriage of Husband and Wife. The marital portion of Husband's military retirement therefore is 2/3 of the whole. Wife shall be and hereby is awarded 50% of the marital portion of Husband's military retirement and which when applied results in Wife's entitlement to, and award herein, of $481.11 per month.

         The court further determined that Wife was in need of certain dental and/or orthodontic treatment, which would be paid for by insurance or by Husband. The court denied Wife's request for alimony of any type. Wife timely appealed.

         II. Issues Presented

         Wife presents the following issues for our review, which we have restated slightly:

1. Whether the trial court abused its discretion by determining that Wife was not entitled to an award of alimony, specifically alimony in futuro.
2. Whether the trial court erred by failing to award Wife alimony in solido in the form of attorney's fees.

         III. Standard of Review

         As our Supreme Court has explained concerning a trial court's determination of whether to award spousal support:

[T]rial courts should be accorded wide discretion in determining matters of spousal support. See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846) ("Upon a divorce . . . the wife is entitled to a fair portion of her husband's estate for her support, and the amount thus to be appropriated is a matter within the legal discretion of the chancellor . . . ."). This well-established principle still holds true today, with this Court repeatedly and recently observing that trial courts have broad discretion to determine whether spousal support is needed and, if so, the nature, amount, and duration of the award. See, e.g., Bratton v. ...

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