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Sullivan v. Sullivan

Court of Appeals of Tennessee, Nashville

October 4, 2019

LI HUANG SULLIVAN
v.
ERIC JASON SULLIVAN Property Appellant's Value Appellee's Value Value Found by the Trial Court Party To Whom Awarded Property Appellant's Value Appellee's Value Value Found by the Trial Court Party To Whom Property Awarded

          Session August 14, 2019

          Appeal from the Chancery Court for Williamson County No. 45851 James G. Martin, III, Judge.

         This appeal is from a final decree of divorce. The Husband challenges several of the trial court's rulings regarding the parenting plan, division of the marital estate, calculation of child support, and denial of his motion to amend to file a counterclaim for alimony. For the following reasons, we affirm the judgment of the trial court.

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

          Stanley A. Kweller, Nashville, Tennessee, for the appellant, Eric Jason Sullivan.

          Helen Sfikas Rogers, Siew-Ling Shea, and Gene F. Guerre, Nashville, Tennessee, for the appellee, Li Huang Sullivan.

          Carma Dennis McGee, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          CARMA DENNIS McGEE, JUDGE.

         I. Facts &Procedural History

         Li Huang Sullivan ("Wife") and Eric Jason Sullivan ("Husband") were married in October 2005. They have two minor children, a seven-year-old daughter ("Daughter") and a five-year-old son ("Son").[1] Throughout most of the marriage, Wife worked as a mortgage banker, and Husband worked as a nurse. The parties' income varied during the course of the marriage.

         After eleven years of marriage, Wife filed a complaint for divorce in January 2017, alleging irreconcilable differences and inappropriate marital conduct. In March 2017, Husband filed an answer but did not assert a counterclaim. Wife subsequently filed a motion for pendente lite "child and family support." After a hearing, Husband was ordered to pay "family support" in the amount of $1, 000 per month, beginning August 1, 2017. The court further ordered that each party would be responsible for continuing to pay his or her respective expenses, as listed on the exhibits they filed with the court. However, the court declined to require Husband to pay any portion of the children's private school tuition and reserved the issue for the final hearing.[2]

         Throughout the majority of 2017, the parties engaged in ongoing discovery and filed several pretrial motions. Husband filed a motion for a temporary restraining order, alleging that Wife was alienating him from the children.[3] Subsequently, Wife filed a motion for drug testing, alleging that Husband used illegal steroids. Wife also had a subpoena issued requesting production of Husband's pharmacy records.[4] Husband then filed a motion for a protective order and to quash the subpoena. However, he later admitted that the motion was filed in an effort to prevent discovery of his dishonesty in sworn statements made throughout the proceeding. The trial court entered an order in November 2017, granting Wife's motion for drug testing. In December 2017, the trial court entered an order denying Husband's motion to quash and temporary restraining order.

         In February 2018, Wife was permitted to amend her complaint to allege that Husband committed adultery. Along with Wife's amended complaint, she submitted a proposed parenting plan. The plan suggested that she be designated as the primary residential parent and receive 237 days of annual parenting time, and that Husband receive 128 days.

         Husband filed an amended answer to the amended complaint, but again asserted no counterclaim. Husband admitted that he engaged in extramarital relations approximately one year prior to the filing of the divorce. Shortly thereafter, Husband filed a proposed permanent parenting plan. Husband's plan proposed that he be designated as the primary residential parent and receive 261 days of parenting time, and that Wife receive 104 days.

         On Thursday, March 29, 2018, the trial court held a pretrial conference. At that time, the parties discussed the joint statement of assets and liabilities and the expectations for the upcoming trial the following week. The next day, after the clerk's office had closed, Husband faxed an emergency motion for leave to file a counter-complaint.[5]Husband requested that he be allowed to assert a claim for alimony.

         Wife opposed Husband's motion and filed a response and memorandum of law in opposition. Husband's motion was heard on the first day of trial.[6] The trial court denied Husband's motion, finding inter alia that the "divorce had been pending for 15 months" and "to allow Husband to amend his pleadings two days before trial would be unduly prejudicial to Wife." The court also approved a stipulation on assets belonging to third parties and a stipulation of an amended joint statement of assets and liabilities, filed by the parties. The parties agreed to the valuation of the parties' assets and liabilities with the exception of the marital home and certain vehicles owned by the parties. Although the parties largely agreed on the valuation of their assets and liabilities, they did not agree as to the equitable division of the marital estate.

         The divorce was tried over five non-consecutive days. During the course of trial, the court heard a substantial amount of testimony. The record contains over eight hundred pages of testimony from various individuals, along with evidentiary depositions and numerous exhibits. Much of the testimony focused on the care of the children, both prior to and after the filing of the divorce.

         Two months after the last date of trial, the court entered an interlocutory order, finding that Husband engaged in inappropriate marital conduct and addressing the division of assets and debts, along with interim parenting time for the parties.[7] The stated purpose of the interlocutory order was to allow the parties to "make plans for themselves and their children," while the court completed a comprehensive memorandum and order that would address all issues. Shortly thereafter, an agreed order was entered modifying the summer parenting time.

         On July 11, 2018, the trial court entered a memorandum and order, containing more than eighty pages, with detailed findings of facts and conclusions of law. The order thoroughly discussed the testimony of various witnesses, the credibility of the parties, and the concerns of the court.[8] The court divided the parties' assets and debts in a manner the court deemed equitable. Wife was awarded $717, 129.90 in marital assets and Husband was awarded $591, 904.17 in assets.

         In formulating the parenting plan, the court analyzed the evidence and applicable statutory factors. Wife was named the primary residential parent and granted sole decision-making authority for the children regarding education, non-emergency health care, and religious upbringing.[9] Husband and Wife each had decision-making authority for the children regarding extracurricular activities. The residential parenting schedule provided for Husband to exercise parenting time with the children: (1) every other weekend from 5:00 p.m. on Friday until 5:00 p.m. on Sunday;[10] (2) 5:00 p.m. until 7:00 p.m. on Thursday following the weekend when he exercised parenting time and Tuesday of the week that he did not exercise weekend visitation; (3) alternating holidays and school breaks; and (4) alternate weeks during the summer, with Husband receiving the first week of each summer. The plan allocated 269 days to Wife and 96 days to Husband.

         Child support was calculated based upon the parties' gross monthly income. Included in the child support worksheet were work-related childcare expenses and expenses for the children's private education. The children had attended a private school throughout the parties' marriage. Daughter had a learning disability, along with other diagnoses, which required special services to meet her educational needs. The trial court ordered that Wife could choose the school she deemed appropriate for the children. Wife elected to enroll Daughter in Currey Ingram Academy, and the cost for Daughter's tuition ($41, 397 annually) was included in the child support worksheet. Son attended Christ Presbyterian Academy, where the tuition was $14, 433 per year. Husband was ordered to pay Wife $2, 032.97 per month in child support. The child support calculation included an $883.97 upward deviation for Husband, to reflect his nineteen percent (19%) pro rata share for both children's private education.

         Wife requested an award of attorney's fees, which was denied by the trial court. After entry of the memorandum and order, both Husband and Wife filed motions to alter or amend the order. Wife requested the court reconsider her request for attorney's fees and expenses. Husband requested modifications in his parenting time, child support, and division of the marital assets and liabilities. The court entered an order denying both parties' motions to alter or amend. Husband timely filed a notice of appeal.

         II. Issues Presented

         Husband presents the following issues, as we perceive them, for review on appeal:

1. Whether the trial court erred in determining that Wife should be designated the primary residential parent;
a. Whether the trial court erred in awarding Husband less parenting time than Wife suggested in her proposed permanent parenting plan;
b. Whether the trial court abused its discretion by awarding Husband less parenting time as a form of punishment for Husband's dishonesty;
2. Whether the trial court erred in determining the amount of child support awarded;
a. Whether the trial court erred in ordering that Husband pay a pro rata share of the children's "work-related childcare" and private educational expenses;
3. Whether the trial court erred in its division of marital assets;
4. Whether the trial court erred in denying Husband's motion to amend to file a counterclaim for alimony.

         In the posture of appellee, Wife seeks an award of attorney's fees for trial and on appeal. For the following reasons, we affirm the decision of the chancery court.

         III. Discussion

         A. Standard of Review

         Generally, in non-jury cases, we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review questions of law de novo, attaching no presumption of correctness to the trial court's legal conclusions. Armbrister, 414 S.W.3d at 692 (citing Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002)).

         Notably, however, our specific standard of review depends, in large part, on the issues that the parties have presented to this Court. Consequently, we will discuss each applicable standard of review in correlation with the issue presented.

         B. Permanent Parenting Plan

         Husband raises several issues regarding the trial court's formulation of the permanent parenting plan. The Tennessee Supreme Court has repeatedly emphasized "the limited scope of review to be employed by an appellate court in reviewing a trial court's factual determinations in matters involving child custody and parenting plan developments." C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017). The Court stated: "the appropriate standard of 'review of the trial court's factual findings is de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise.'" Id. (quoting Armbrister, 414 S.W.3d at 692-93). The Court reasoned that:

[T]rial courts are in a better position to observe the witnesses and assess their credibility; therefore, trial courts enjoy broad discretion in formulating parenting plans. [Armbrister, 414 S.W.3d] at 693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). "Thus, determining the details of parenting plans is 'peculiarly within the broad discretion of the trial judge.'" Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). Appellate courts should not overturn a trial court's decision merely because reasonable minds could reach a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Id. at 495. Furthermore, a trial court abuses its discretion when its ruling "'falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.'" Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42 S.W.3d at 88).

         Here, Husband argues that the court abused its discretion in naming Wife as the primary residential parent and allocating him less parenting time than suggested by Wife. The core of Husband's argument is that the trial court made its decision to punish him for testifying falsely throughout the proceedings.[11] Respectfully, we find this argument somewhat disingenuous. Husband does not cite any specific references to the record to support that argument, but merely speculates that the trial court's overall formulation of the parenting plan served as a consequence for his dishonesty.[12]

         It is apparent from the record that Husband and Wife cannot agree on how best to parent the children. The parents agreed at trial that the court must designate a "captain of the ship." Therefore, the court was tasked with the responsibility of formulating a permanent parenting plan. Creating a parenting plan "is one of the most important responsibilities courts have." Armbrister, 414 S.W.3d at 696. As explained by this Court, "[t]rial courts must be able to exercise broad discretion in these matters." Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).

         i. Primary Residential Parent and Residential Schedule

         In the development of a parenting plan, the court is required to determine a residential schedule, which designates a primary residential parent. Tenn. Code Ann. § 36-6-402(5). The trial court must consider the factors listed in Tennessee Code Annotated section 36-6-106(a)(1)-(15) to ascertain the best interest of the child, in determining a residential schedule and naming a primary residential parent.[13] See Tenn. Code Ann. § 36-6-404(b); Tenn. Code Ann. § 36-6-106(a). The factors set forth in Tennessee Code Annotated section 36-6-106(a), are as follows:

(1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
(2) Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between each ...

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