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Erdman v. Erdman

Court of Appeals of Tennessee, Nashville

December 10, 2019


          Session September 4, 2019

          Appeal from the Chancery Court for Williamson County No. 44359 Deanna B. Johnson, Judge

         This is a divorce case. For most of the parties' marriage, the wife was a homemaker and the husband worked as a pharmaceutical sales representative. After husband was granted a divorce, the wife filed an appeal with this Court raising several issues for our review. Among other things, the wife takes issue with the trial court's classification and division of property and its decision to deny her alimony. For the reasons stated herein, the judgment of the trial court is affirmed in part, reversed in part, vacated in part, and remanded for such further proceedings as are necessary and consistent with this Opinion.

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

          Sarah Richter Perky, Franklin, Tennessee, for the appellant, Jennifer Erdman.

          Roger Reid Street, Jr., and Elizabeth A. Russell, Franklin, Tennessee, for the appellee, Mark Erdman.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.




         The parties to this appeal, Jennifer Erdman ("Wife") and Mark Erdman ("Husband"), married in May of 2000. Wife entered the marriage with one child from a prior marriage, whereas Husband had never previously been married and had no children. Over time, six children were ultimately born of the marriage.

         Although Wife was employed by her parents' businesses at the time of the marriage, she stopped working in 2001 when the parties' oldest child was born. For the majority of the marriage, Wife served as a homemaker, although she occasionally supplemented the family's income by assisting with local soccer tournaments, among other endeavors. At the time of trial in this matter, Wife had resumed work in her family's businesses, earning a little over $50, 000.00 per year as a result of this employment. For his part, Husband served as the primary breadwinner during the marriage, working as a drug sales representative for Pfizer. In 2017, he earned approximately $190, 000.00.

         The litigation in this matter commenced in July 2015 when Wife filed a complaint for divorce. Wife averred that the parties had experienced irreconcilable differences in their marriage, and pleading in the alternative, she accused Husband of inappropriate marital conduct. Husband answered the complaint in August 2015 and contemporaneously filed his own petition for divorce. Whereas Husband agreed that the parties were experiencing irreconcilable differences in the marriage, he denied that he was guilty of inappropriate marital conduct. According to Husband, Wife was the one guilty of inappropriate marital conduct. Wife promptly denied this allegation when she filed her answer to Husband's counter-petition in September 2015, but, upon Husband's filing of an amended counter-petition for divorce, she later admitted to having committed adultery. Wife argued, however, that the adultery was not the cause of the marriage's demise and specifically asserted that it had taken place only after she and the children had moved out of the marital residence.

         The trial of this matter occurred over multiple dates between June 2017 and January 2018. The proof was quite extensive and covered several topics, including the parties' financial details, the children's schooling arrangements, and the children's participation in extracurricular activities. On August 29, 2018, the trial court entered its "Memorandum and Order," granting Husband a divorce on the grounds of Wife's inappropriate marital conduct and adultery. The "Memorandum and Order" was very detailed and made a number of rulings incident to the divorce. In addition to dividing the parties' assets, the trial court's order denied Wife's request for alimony and attorney's fees and granted Husband sole decision-making authority regarding the children's extracurricular activities. In a subsequently-entered permanent parenting plan, Husband was charged with responsibility for payment of the children's tuition, uniforms, and books associated with private schooling, whereas Wife was charged with responsibility for tutoring and required school fees. Wife now appeals to this Court, raising several grievances.


         Wife's appellate brief sets out a number of issues for this Court's consideration. In addition to raising a number of discrete concerns with respect to the trial court's classification, valuation, and division of the marital estate, Wife's brief presents the following issues:

• Whether the trial court erred in failing to award Wife alimony.
• Whether the trial court erred in awarding Husband sole decision-making authority regarding extracurricular activities.
• Whether the trial court erred in requiring Wife to be responsible for private school fees and tutoring costs.
• Whether the trial court erred in failing to award Wife attorney's fees.
• Whether Wife should be awarded appellate attorney's fees.

         In Husband's brief, he asks for an award of attorney's fees and costs on appeal.


         This appeal follows a bench trial. Pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure, "review of findings of fact by the trial court in civil actions shall be 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 review a trial court's conclusions on questions of law de novo, but no presumption of correctness attaches to the trial court's legal conclusions. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).


         We turn first to Wife's various concerns pertaining to the trial court's property classification and the division of the marital estate. Initially, this requires us to entertain her raised issue connected to the trial court's conclusion that Husband had $611, 000.00 as separate property between a 401(k) and an additional retirement account. The classification of property as marital or separate is a significant part of divorce proceedings because "property cannot be included in the marital estate unless it meets the definition of 'marital property' contained within the Tennessee Code." Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 WL 568544, at *7 (Tenn. Ct. App. Feb. 13, 2017).

         The proof at trial showed that at the time of the marriage Husband had a 401(k) with a premarital value of $611, 000.00. Without a doubt, this was his separate property at the time of the marriage. The proof showed that the 401(k)'s value decreased in the early years of the marriage due to market forces, and testimony demonstrated that a number of loans were taken against the 401(k) throughout the marriage to pay marital bills. Further, the evidence demonstrated that ...

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