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Barron v. Barron

Court of Appeals of Tennessee, Knoxville

November 20, 2019


          Session October 15, 2019

          Appeal from the Chancery Court for Hamilton County No. 17-0585 Pamela Fleenor, Judge

         Wife filed for divorce on the grounds of irreconcilable differences. The trial court granted husband a divorce on the grounds of wife's adultery and other inappropriate marital conduct. Despite the many factors found by the trial court to be favorable to husband, the court awarded husband only 43% of the net marital estate. It also awarded husband one year of transitional alimony at $2, 000 per month. We hold that the trial court erred in its division of the net marital assets and in its determination as to the duration of the transitional alimony awarded to husband. We modify the trial court's judgment so as to provide husband five years of transitional alimony. We hold that the Roth IRA is a marital asset; it is awarded to husband and wife in equal share. Furthermore, we hold that the FERS pension account is to be divided between the parties as set forth in this opinion. As modified, the judgment of the trial court is affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Modified in Part; Case Remanded

          Jillyn O'Shaughnessy, Chattanooga, Tennessee, for the appellant, Bruce Joseph Barron.

          John T. Rice, Chattanooga, Tennessee, for the appellee, Ruby Diane Barron.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J. and Thomas R. Frierson, II, J., joined.




         In July 1991, husband and wife met, in Germany. At the time, husband worked as a tour guide, and wife worked as a speech pathologist on a U.S. military base. In December 1991, they were married; Husband was 36 years old and wife was 40. It was both of their first marriage.

         The parties live in Germany. Husband is now 62 years old and wife is 67. Husband has a plural effusion of the left lung from cancer. He had chemotherapy from 2015-2016, and hernia surgery in 2018. As a result, husband can only work a job that is sedentary. Wife is in good health, and continues to work as a speech therapist for the U.S. Department of Defense school system, in Germany. Her income is listed as $11, 893.52 per month.

         The parties have a biological son that was born in 1993. They later adopted a second son that had developmental delays. After the adoption of their second child, husband became a homemaker. Husband has not been employed outside of the home since 2005. Throughout the marriage, wife traveled extensively without the children and husband. Husband was often left home alone to care for them.

         On August 8, 2017, wife filed a complaint for absolute divorce on the ground of irreconcilable differences. On November 21, 2017, husband filed his answer and counterclaim; he alleged that wife had committed adultery and other inappropriate marital conduct. Husband stated in his response to wife's request for interrogatories that:

My wife is rarely at home on U.S. holidays or school vacation time. She has regularly taken overnight trips and extensive vacations without our family. This has been going on for many years. U.S. holidays and school vacation times were normally the busy times when I would've worked as a tour and travel guide for the U.S. forces in Europe. I was unable to work when she was gone because we had a young child to care for. This was starting [sic] when my wife went on a trip to Russia by herself in April Easter break of 1995.
My wife was also president of the overseas speech and hearing association which required her to travel on frequent overnight trips, sometimes from Germany back to the US. Some of the more recent trips she has taken, while I was with the kids at home, are as follows:
Oct 6-9 2017. Milan Italy
Sept 15-17 Somewhere in Germany
Sept 1-4 Belgium
July 6-Aug 12 Florida, Tn. (Against my will, She took my youngest son went with her.)
May 26-29 Mediterranean island of Cypress
April 7-16 Greek island cruise
Nov 23-27 2016 Thanksgiving Barcelona, Spain
Oct 7-10 Stockholm, Sweden
Sept 2-5 Vienna Austria
July and Aug tour of China
April 7-9 Croatia Slovenia Fall of 2015 Eastern Mediterranean cruise
June-Aug Florida, Ms
April Baltic states Latvia, Lithuania, Estonia
2014 June-August Cambodia, China and S Korea
This is only a partial list, there are many more vacations she has taken without our family. Diane has had extramarital relationships which are not appropriate or conducive to married family life. She continues to this day to be in a casual relationship with a man whom she met on the internet, going on dates with him to plays in Frankfurt, taking him shopping in the military PX, which is illegal because it is a violation on German tax laws. She puts her job and our family in jeopardy by doing this. It's embarrassing and humiliating to me because my neighbors have informed that this man was in our house when I wasn't there. She continually had him at our house when I wasn't home. I know this because my kids always told me about it. I believe it hurt them emotionally.
I initiated marital counseling several years ago. The counselor told Diane she should stop seeing this man but Diane refused and quit counseling instead.
She also continues in an inappropriate relationship with an old boyfriend who used to write her letters of affection and address them to Diane's friend so that I wouldn't find them in our mailbox. This goes back to the days before email. She saved the letters and I discovered them when unpacking a move from Darmstadt to Wiesbaden Germany for her job. The messages were left open on our family computer indicating that they regularly planned on meeting each other. He regularly traveled from Atlanta to Germany on duty assignment with the U.S. army. He was with my wife on the third weekend in February, 1997 while I was working on a tour at the time. I know this because he said it in the letter. He also said how affectionate and sexy she was. Diane continues to correspond back with him to this day. I didn't feel too good about it. It had become apparent to me that Diane cared more about the affection of other men than her husband.
My wife is moody, changing her mind frequently. This is the third time divorce has been filed. The other two were withdrawn. One was in Germany and was withdrawn because she did not want to divide assets. The other in Tennessee because attorney was someone she told me that she previously had sexual relations with and that she continues to visit and be friends with today. My wife insisted on having invitro-fertilization done by a fertility specialist until she was 49 years old, even though the doctor told her that infertility was not her problem, advanced age was. This included having 2 egg donors which is not legal in Germany. We had to go to Belgium for this. This was at an expense of more than $60, 000. She finally agreed that adoption was the best option. We were only allowed to adopt because I was younger than 50 at the time and told the judge and stated in our dossier that I would be able to stay at home and care for the baby while she had a professional job that would provide a good income for our family. This worked well for our family but because the nature of my work, being out of the country for days at a time, I was no longer able to work this job. When my youngest son was old enough for school, I worked at the education center on the military base but lost this job when the base closed and Diane transferred and moved our family to Wiesbaden for her new job. We purchased a house together which my name was on the loan and has been paid for with the U.S. government employee overseas dependent spouse and family housing allowance. My name was on the mortgage because otherwise, the bank would not finance it. Shortly after we moved into the new house, Diane closed joint accounts and credit card and withheld money even though she was getting a tax free spouse and family housing and overseas cost of living allowance. On a Facebook post, she told her boyfriend in Pell City Al that she intended on doing this. This has continued to this day, she refuses any support. This includes medical and dental care because I did not have the money to pay up front. When I was diagnosed with cancer and a grade 4 tumor requiring surgery and several months of chemo therapy, my wife left for a vacation in Florida for the summer leaving me no money for the chemotherapy medication. This was even though we had insurance that would reimburse 90% of the cost. I had to [borrow] money. She has continued to tell me to move even though I am unable to and this has put tremendous stress on me. Legally, I can only stay in Germany with my son as a dependent spouse on U.S. government orders which I have been for over 25 years. My wife has refused intimacy for a long time telling me that she is intimate with someone better able to please her. I believe she says this to me only to be hurtful. This is only a partial description of behaviors which to me are inconsistent with a healthy marriage.

         On December 13, 2017, wife filed an affidavit stating that the oldest son had graduated from the University of Tennessee. The youngest son graduated from high school, in Germany, in 2018, and has been accepted under the Tennessee Promise Program, which grants students free college tuition. Therefore, both children have reached the age of majority.

         On May 3, 2018, wife filed a motion to set the matter for trial. On May 24, 2018, the trial court entered an order stating that the parties had agreed to set the trial for August 8, 2018 as to all issues. Wife then filed for partial summary judgment; she requested that the parties' home (referred to as Hessloch Folio 813, in Wiesbaden, Germany) be deemed her separate property. Wife argued that she paid the mortgage, upkeep, and other expenses for the home, and therefore it should be her separate property. She argued that husband has made "no contribution whatsoever to the property."

         Husband opposed wife's motion for partial summary judgment. He argued that the house was acquired, on July 8, 2010, while the parties were married. He argued that

Tennessee law distinguishing marital property from separate property is clear. [Tenn. Code Ann.] § 36-4-121(b)(1)(A) describes "marital property" as "all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce…"

         He argued that the house does not qualify as separate property. He argued that, in addition to non-monetary contributions recognized under law, wife produced documents that contained financial statements regarding the home dated in 2010 addressed to husband alone, and a loan statement in both husband and wife's names. In addition, husband argued that

As for [wife's] claim that she is the only one who has contributed to the Home, the fact is also disputed. Contributions to the marital property is a factor that the Court may consider in dividing the marital asset, but not in determining whether the asset is a separate asset when he does not meet the very definition of separate property, such as the Home in this case.
Tennessee recognizes that a spouse's contributions to marital property are not limited to financial contributions. [Tenn. Code Ann.] § 36-4-121(b)(1)(D) states that a "substantial contribution" by a spouse to marital property may include "the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine." Thus, even if [wife] paid the mortgage on the Home, [wife] was not the sole contributor to the Home and is not entitled to separate property rights to the Home at the exclusion of the [husband].

         The court denied wife's motion. It held that wife failed to allege any facts demonstrating that the home should be considered separate property. The court further stated that even if the burden of production had shifted to husband, he presented a genuine issue of material fact as to whether the home should be considered separate or marital property. The court noted that husband had alleged he contributed financially to the home by taking out a loan of 285, 000 Euros for the purchase, and other substantial contributions as a homemaker, parent, and otherwise. The court held that husband "presented evidence from which the factfinder could determine that [husband] 'substantially contributed' to the home, within the meaning of Tennessee law, and therefore, there is a genuine issue of material fact in dispute."

         At the outset of the trial, the trial court asked if there were any preliminary motions or announcements. Wife's counsel stated "no." Both parties waived making an opening statement.

         Husband and wife were the only witnesses that testified at trial; the court took the matter under advisement. On September 28, 2018, the court entered its memorandum opinion and decree. The court held that husband was the credible witness. The court held that, when the parties moved into their house in Wiesbaden, wife took the master bedroom and husband had to ...

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