Kathryn A. Duke v. Harold W. Duke, III
563 S.W.3d 885
| Tenn. Ct. App. | 2018Background
- Divorce decree (2009) required Father to establish separate educational trusts and contribute specified annual sums for three children; existing UTMA accounts were left unaddressed in the decree.
- On October 26, 2009 the trial court assigned the UTMA accounts to Mother as custodian and ordered Father to create/ fund separate educational trusts as custodian.
- On remand from this Court, the trial court (after hearings in 2015–2016) found expert college-cost projections credible and determined substantial shortfalls in the daughters’ educational trusts because Father stopped funding them in 2011.
- Trial court concluded the UTMA/trust accounts (funded largely by Mother’s family gifts) were not intended to pay college costs and ordered Father to deposit monthly amounts ($5,729.17 and $5,312.50) into the daughters’ educational accounts to cover projected shortfalls; corrected a math error to set C.D.’s monthly amount.
- Trial court granted Mother $25,000 in attorney’s fees for remand proceedings (plus $4,006 for contempt-related fees earlier) and awarded $1,237.50 in discretionary costs for the college-cost expert; Father appealed.
- Court of Appeals affirmed: declined to admit or rely on oral statements from the 2009 transcript over written orders, upheld protective order and fee awards, admissibility of expert testimony, characterization of educational trusts as a child-support deviation mechanism, and declined Mother’s request for appellate fees.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether trial court should have considered 2009 hearing transcript when interpreting Oct. 26, 2009 orders | Transcript showed court intended UTMA funds to be part of educational trusts; stipulation capped college costs | Written October 26, 2009 orders and appellate mandate control; no binding stipulation in record | Court did not err: written orders govern; transcript statements not considered and no binding stipulation existed |
| Whether UTMA accounts must be used to fund college (and proper amount of Father’s contributions) | Father argued UTMA/trust accounts should offset his obligation; contributions ordered were excessive | Trial court found UTMA funds were a separate “nest egg” (largely gifts), intended not for college; expert projections showed shortfalls | Court affirmed: trial court reasonably found UTMA funds not for college and correctly calculated monthly contributions to fund projected shortfalls |
| Protective order and attorney’s fees for discovery disputes | Discovery into Mother’s personal finances was relevant to UTMA/use and should have been allowed | Discovery was irrelevant to limited remand issues; Mother sought protection and fees due to unnecessary requests | Court affirmed protective order and the award of fees for remand proceedings (court did not tie fees solely to protective order) |
| Admissibility of college-cost expert and award of expert costs | Father attacked methodology and objected on appeal (no trial objection) | Mother produced a qualified expert; trial court found testimony credible | Court affirmed admission and award of expert witness costs; Father failed to object at trial and did not show abuse of discretion |
| Whether ordered educational contributions improperly increased child support without required findings | Father contended the deposits effectively raised child support without statutory findings | Trial court treated educational trusts as allowed deviation under child-support rules and made findings on income and percentage | Court held no error: trusts are a permissible deviation mechanism; court considered income, guideline percentages, and Father’s prior failure to fund increased the deficit |
| Recusal claim | Father sought recusal of trial judge | Mother opposed; record lacked trial-court order on recusal for appellate review | Issue waived on appeal for lack of the relevant order in the appellate record; appellant bears record-preparation burden |
Key Cases Cited
- Bowden v. Ward, 27 S.W.3d 913 (Tenn. 2000) (standard for appellate review of bench findings)
- Myint v. Allstate Ins. Co., 970 S.W.2d 920 (Tenn. 1998) (de novo review of legal questions)
- Morrison v. Allen, 338 S.W.3d 417 (Tenn. 2011) (weight afforded credibility findings)
- Jones v. Garrett, 92 S.W.3d 835 (Tenn. 2002) (credibility findings great weight on appeal)
- Memphis Pub. Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303 (Tenn. 1998) (law-of-the-case doctrine)
- Lee Med., Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010) (abuse-of-discretion standard for discovery rulings)
- Davis v. McGuigan, 325 S.W.3d 149 (Tenn. 2010) (abuse-of-discretion for expert admissibility)
- Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993) (educational trust as child-support mechanism)
- Eberbach v. Eberbach, 535 S.W.3d 467 (Tenn. 2017) (standards for awarding attorney’s fees for frivolous appeals)