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Pless v. Pless

Court of Appeals of Tennessee, Nashville

September 30, 2019


          Session: July 10, 2019

          Appeal from the Chancery Court for Williamson County No. 45152 Joseph A. Woodruff, Judge

         In this divorce, Wife appeals the trial court's decision to deny her alimony notwithstanding a previously executed separation agreement that provided a non-modifiable award of alimony in futuro. Wife also appeals the trial court's denial of a arrearage judgment for school and extracurricular expenses under the separation agreement. Discerning no reversible error, we affirm.

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

          Thomas F. Bloom, Nashville, Tennessee, for the appellant, Sheila Long Pless.

          C. Diane Crosier and Marissa L. Walters, Franklin, Tennessee, for the appellee, Robert Eugene Pless, Jr.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.




         Robert Eugene Pless, Jr. ("Husband") and Shelia Long Pless ("Wife") were married in June 1987. Husband and Wife had three children together, all of whom reached adulthood before the present divorce matter commenced. During most of their marriage, Husband worked full-time while Wife home-schooled their three children and did not work outside the home.

         Wife filed a Complaint for Legal Separation against Husband on January 14, 2009 in Williamson County Chancery Court ("the trial court"). Wife sought the legal separation on grounds of irreconcilable differences, inappropriate marital conduct, and adultery. On February 20, 2009, Husband and Wife filed a Final Order of Separation that incorporated a parenting plan and a previously agreed-to Separation Agreement ("the Separation Agreement" or "the Agreement") signed on January 9, 2009. The Chancery Court entered the agreed order on March 10, 2009 and granted the legal separation to Wife on the sole ground of irreconcilable differences. The Separation Agreement was incorporated into the Final Order of Separation. Wife was represented by counsel in the separation, while Husband represented himself.

         The terms of the Separation Agreement outlined the future financial obligations for both spouses. The Separation Agreement required Husband "to pay $2, 000.00 per month to Wife for alimony in futuro. Said alimony shall not be modifiable and shall terminate only upon the death of Wife. The alimony shall be considered taxable income to Wife and shall be tax deductible to Husband." Further, the Agreement stated that "[t]he parties expressly understand and agree that this Agreement is intended to be a complete and final settlement of all property rights and support rights and obligations of the respective parties hereto and shall constitute a discharge from all claims arising out of their marital relationship except as provided herein." The Separation Agreement did not mention a future divorce or discuss the viability of the Separation Agreement if either spouse sought a divorce.

         Additionally, the terms of the parenting plan incorporated into the separation order required Husband to pay $984.00 monthly to Wife as child support. Further, Husband agreed to "pay home school expenses, including, but not limited to, books, classes, internet and computer expenses, as well as extra-curricular expenses such as band, flute, piano, theatre, swimming." Husband also agreed "to pay all typical and ordinary college expenses, to include at a minimum tuition, room and board, and supplies, for the children based on then current tuition rates for an in-state public school in the state that the child resides at the time." Husband also agreed to maintain health insurance for the Wife and their children and maintain a life insurance policy with Wife as the primary beneficiary. Any uncovered health costs for the children would be split pro rata between the spouses, with 83% paid by Husband and 17% by Wife.

         On April 26, 2016, seven years after the order of legal separation, Husband filed a Complaint for Divorce, again in Williamson County. In the divorce complaint, Husband sought a divorce on grounds of irreconcilable differences and a separation of more than two years. The Separation Agreement was not mentioned in the divorce complaint. On May 31, 2016, Husband also filed a petition for modification or termination of alimony in the legal separation case, which remained separate from the divorce case. Due to Wife's employment and Husband's financial circumstances, Husband alleged a substantial and material change in circumstances that would allow the court to limit or terminate Husband's alimony obligations.

         Wife responded to the divorce complaint and petition to modify or terminate alimony with separate filings. In her answer to the divorce complaint filed on June 15, 2016, Wife argued that a final disposition of property occurred through the legal separation and requested a divorce on a ground of two years of separation "as no reconciliation has occurred." She further requested that Husband be responsible for all attorney fees and court costs related to the matter.

         On July 7, 2016, Wife filed a motion for summary judgment in response to Husband's petition to modify or terminate alimony. Wife argued that Husband's petition should be dismissed and that she was entitled to judgment as a matter of law, as the final order for the legal separation "specifically and unequivocally states that the alimony ordered to be paid by Husband to Wife is not modifiable." Husband filed a response opposing summary judgment in September 2016, arguing that the alimony was modifiable as alimony in futuro and that he did not seek the advice of counsel when signing the Separation Agreement. On April 17, 2017, the trial court denied Wife's motion for summary judgment, stating that the legal separation order did not contain findings regarding "the total property owned by the parties, the parties' incomes, or whether the Court intended the Final Order of Separation to be a final division of the property."

         While the motion for summary judgment was pending, Wife filed a counter-petition to assess Husband's outstanding obligations in the divorce action on March 1, 2017.Wife argued that Husband owed Wife and their children a combined $107, 461.62 under the terms of the Separation Agreement for unpaid homeschool, college, and medical expenses. Wife demanded that Husband pay $1, 500 a month, called for specific performance to pay for the remaining child's college education, and sought a judgment entered against Husband for the college costs of each child. In the termination of alimony action, Wife later amended her counter-petition to request that the trial court grant her a divorce on the single ground of separation and incorporate the Separation Agreement and remaining elements of the parenting plan into a final divorce decree. In a response to the counter-petition, Husband sought credit for his payments "over and above the child support obligation" and argued that Wife's allegations of outstanding obligations were not itemized and outside the scope of the Separation Agreement.

         When the trial court issued its memorandum and order regarding Wife's motion for summary judgment, it advised the parties to "strongly consider" merging the separation and divorce cases into a single matter. An agreed order to consolidate the matters was entered on July 30, 2018. A trial on the combined matter was held on August 31, 2018.

         At trial before a different trial judge than the one that heard the separation proceeding, Husband and Wife testified over the disputed issues of alimony and arrearages. The spouses stipulated that Wife should be granted a divorce based on the parties' separation and that the terms of the Separation Agreement regarding property division should be incorporated into the divorce decree, with the exception of limited tangible personal property that Husband believed was separate property. Two claims in Wife's counter-petition regarding college costs were also voluntarily dismissed without prejudice before testimony began. At trial, Wife did not object to Husband entering the basement of the marital home to search for and retrieve specific items of tangible personal property that belonged to him. The trial court therefore ordered that Husband be allowed to enter the basement to search for the listed tangible personal property.

         Concerning alimony, Husband testified that his monthly payments to Wife continued to have an overwhelming effect on his living and financial circumstances. After the legal separation was entered, Husband testified that he moved away from the marital residence. Husband stated that he lived in his minivan for five months before moving between small bedrooms and apartments for several years. He continued to work during the separation and placed his income into the marital bank account. In 2011, Husband moved to Memphis for a higher-paying job and rented small apartments in the city. For a limited period of time, he rented an apartment where he and his son could live together after his son graduated college. Husband next moved to Fayetteville, Arkansas in 2015, where he worked as Director of Facilities at the Walton Arts Center when the present case was heard. While he earned approximately $77, 000.00 annually as Director of Facilities, Husband worked a second job to help meet his support obligations under the Separation Agreement. Husband also earns $966.00 each year for his work at an annual music festival in Memphis. Husband continued to live in a one-bedroom apartment in Fayetteville, Arkansas and worked to limit his living expenses to continue to make alimony payments. Since the separation was granted, Husband paid Wife $1, 000.00 every two weeks for alimony and $500.00 every two weeks for child support when child support was owed. Additionally, Husband continued to pay child support through 2017, years after each of the family's children reached the age of majority. The $1, 000.00 per month in child support, split over biweekly payments, was $16.00 more than Husband was required to pay each month and led to several "extra" payments. Husband supplied additional funds to Wife, including $200.00 each month to pay for an outstanding tax obligation. Husband also paid for 100% of the children's healthcare costs, above and beyond the pro rata requirements outlined in the Separation Agreement. During the period of separation, Husband paid Wife a total of $71, 200.00 above his alimony and child support obligations to Wife. The money was provided to Wife with occasional instructions for its use, including paying for college, medical bills, or previous investments or tax obligations.

         Husband stated that, despite his salary, he has lived in spare bedrooms and small apartments for years after the separation so he could consistently pay alimony and child support. Evidence was produced concerning Husband's income and payments regarding alimony, child support, and other family contributions that were required and not required under the Separation Agreement. While Husband stated that he voluntarily signed the Agreement without fraud or duress, he said both spouses "anticipated a reconciliation" when they entered into the Separation Agreement and later attended counseling periodically.

         After the separation took effect, Wife testified that she remained at home to homeschool the family's remaining children. As the youngest child finished high school and enrolled in college, Wife re-entered the workforce and took a job with The Home Depot. When the divorce trial occurred, Wife made less than $13.00 an hour as head cashier. She also possesses more than $400, 000.00 she received through a wrongful death claim that has largely remained in savings. Wife stated that she is averse to financial risk after she lost around $18, 000.00 from an investment that Husband encouraged her to make. Wife owned the marital home in Brentwood ("the marital home"), though she obtained full title to the home before the legal separation through a quitclaim deed signed by Husband.

         Wife testified that she believed the Separation Agreement granted her permanent alimony from Husband "indefinitely[.]" Wife considered the Separation Agreement "an agreement between me and my husband and he agreed to it and it's also was necessary for me to live. Most of my living expenses are used from that." Wife's testimony revealed several discrepancies between her financial obligations as described in evidence and with her testimony itself. Wife further testified at length about how she believed Husband had lied and withheld money from her while she was trying to keep their family afloat. Wife testified that she perceived the approximately $71, 000.00 in voluntary payments was "just to help out with living expenses" and should not be credited against any financial obligations under the Settlement Agreement. Wife also discussed her regular expenses, but her testimony did not correlate with the expenses listed in her trial exhibits. The trial court found that Wife's testimony concerning her expenses was not reliable.

         After testimony and the filing of post-trial briefs, the trial court granted the Wife a divorce based on the legal separation of more than two years. However, the trial court analyzed alimony under the state's statutory framework without considering the terms of the Separation Agreement. Based on the parties' current financial situations and the statutory factors concerning alimony, the trial court did not grant spousal support to either party. Wife's claims for money judgments against Husband were also dismissed. Rather, the trial court found that Husband's payments exceeded the funds Wife claimed were owed for medical and extracurricular homeschool expenses. Wife timely appealed the judgment to this Court.

         Issues Presented

         Wife presented the following issues on appeal, which this Court slightly restates as follows:

         1. Whether the trial court erred in failing to enforce the alimony provision of the Separation Agreement as a contract between the parties.

         2. Whether the trial court erred in failing to incorporate the Separation Agreement into the final divorce decree and failing to find that a material change in circumstances warranted a modification of the Husband's alimony obligation, or alternatively, whether the trial court abused its discretion by not granting alimony to Wife after a de novo review.

         3. Whether the evidence preponderates against the trial court's decision that the Husband's voluntary payments to Wife during the separation were intended or should be credited to satisfy the Husband's financial obligations specified in the Separation Agreement.

         4. Whether the trial court abused its discretion in not awarding attorney's fees to Wife.

         5. Whether Wife should be awarded attorney's fees incurred on appeal. In the posture of Appellee, Husband also seeks an award of attorney's fees incurred in this appeal.


         I.Alim ...

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