*1 Linda Alexander OWENS Emery
James OWENS. Tennessee, Appeals
Court
at Nashville.
May 2006 Session. 29, 2007.
March Rehearing Petition for
Opinion Denying
April Appeal Denied
Permission 17, 2007. Sept. Court
Supreme *6 Anderson, Nashville,
Robert A. Tennes- see, appellant, for the Linda Alexander Owens. Clarksville, Maness,
Roger A. Tennes- see, Emery appellee, for the James Owens. OPINION KOCH, JR., P.J., M.S., C. WILLIAM court, opinion of the in which delivered the and FRANK PATRICIA J. COTTRELL JR., CLEMENT, JJ., joined. G. eventually marriage. stopped involves the financial as- She appeal This working a her efforts to pects marriage of that devote homemak- of the dissolution ing. enjoyed The affluent stan- twenty-five years. parties approximately lasted marriage. during dard of Their living sought Both a divorce in the Cir- parties private elementary children and attended cuit County. Court for Davidson Follow- schools, secondary each of them was trial, ing the trial a bench court declared private college enrolled in a time of divorced, parties parties’ divided the trial. estate, and awarded the wife reha- years. for six this alimony bilitative On In March filed peti- Ms. Owens appeal, takes issue the trial the wife with for tion divorce in the Circuit Court for and division the mari- court’s valuation of County. alleged Davidson inappropri- She tal and with the amount and dura- estate ate marital conduct and irreconcilable dif- spousal support tion She award. responded ferences. Mr. Owens with the also the trial refus- takes issue with court’s counterclaim for divorce on the same attorney’s al to her fees and discre- award trial, Mr. Owens grounds. agreed Prior to tionary costs. We have determined that pay approximately Ms. Owens does not the trial evidence expenses, per living per month for $150 valuation of one marital court’s payment, per month for car equitable and that a more division interest expenses. for discretionary month required. have the marital estate We parties disagreed The over classifi- also determined amount cation and of their assets. Ms. valuation length spousal support of the wife’s should to share the costs retain- offered Finally, be increased. we have deter- assets, ing experts value the but Mr. by deny- the trial court mined that erred After pro- Owens declined the offer. ing request payment of her the wife’s discovery longed period, and contentious attorney’s by declining fees did not err but September the case on 28 and was tried discretionary to award her costs. parties’ disagree- October (1) ments the classification of centered I. Mr. IRA and a house in Boca *7 Emery (2) Owens and Alexan- James Linda Raton, Boca of the Raton the value in der married 1977. Mr. Owens home, Owens house, partnership the marital to years old had not twenty-seven and manage property, own and rental and Mr. been Ms. (3) married before. Owens was business, and Ms. Owens’s real estate years old. twenty-eight She had been spousal Owens’s need for and Mr. custody and had of her married before support. In its ability pay Owens’s daughter prior The marriage. from memorandum filed on November opinion children parties also had two of their own. 18, 2004, par- declared the the trial court majority All attained the children before marital divorced, proper- ties allocated brought to trial. this case was debt, Mr. ty and directed Owens and $2,500 per month for three pay Ms. Owens in Mr. had served the United Owens $1,500 month for three years per and then completed year Army and had one States additional years. most mar- college. Throughout requested requiring Ms. an order riage, employed as a real estate Owens he was $40,251.71in pay Ms. had a Mr. Owens to discretion- and investor. broker R. ary costs filed a Tenn. P. and a sub- and also Civ. teaching certificate worked as an increase in the seeking of 59.04 motion during early years teacher stitute spousal support property,” and an additional award as defined 36-4-121(b)(2), legal expenses. § for her The trial court should not be included motions, ap- denied both Ms. Owens the marital estate.
pealed. Questions the classifica regarding sepa marital or property tion of as either
II. rate, opposed questions involving as The Classification Valuation of the division of the mari appropriateness Property the Marital estate, inherently tal are factual. Current Current, Ms. Owens insists that the trial court No. M2004-02678-COA-R3- CV, 656791, erred its valuation of the Boca Raton at *1 (Tenn.Ct.App. 2006 WL 2006) house, (No home, Mar.15, R.App. ap and Mr. Tenn. P. 11 realty filed); interest in his plication Bilyeu Bilyeu, business. For his part, 2005), Mr. Owens asserts that the trial (Tenn.Ct.App., (Tenn. by 12, 2006); court erred classifying perm. app. the Boca Raton denied June 15:3, house marital property. § as We have de- Divorce Accord Tennessee termined that the pre- ingly, appellate evidence does not a trial courts review ponderate against classifying property using the manner which the court’s decisions trial court proper- classified each of these the familiar standard of review Tenn. 13(d). ties but that the evidence does not P. support R.App. the trial court’s valuation of the Boca Ra- rule, general As a ac assets
ton house. quired by either the mar spouse during riage to marital presumed property. are be A. 36-4-121(b)(1)(A); § Tenn.Code Ann. Applicable Legal Standards Church, Church v. No. M2004-02702-
Dividing COA-R3-CV, marital estate neces 2006 WL at *7 sarily 2006) (No begins systematic with the identifi (Tenn.Ct.App.Aug.1, Tenn. cation of all of the parties’ property filed); inter R.App. application P. 11 Hunter v. Garrett, Hunter, ests. 19 M2002-02560-COA-R3-CV, W. Walton Tennessee No. Divorce, Practice: Tennessee Alimony at *4 (Tenn.Ct.App. WL (rev. 2005) (No Custody 15:2, § Child at 321 R.App. ed. June Tenn. P. 11 2004) (Tennessee Divorce). filed); The second application Tennessee Divorce step classify 15:4, 333, and, is to similarly, each of these assets ac interests as either separate quired or marital spouse prior either to the mar property. Flannary Flannary, riage presumed separate are proper *8 647, (Tenn.2003); 36-4-121(b)(2)(A). § S.W.3d 650 Conley ty. v. Ann. Tenn.Code 692, Thus, Conley, 181 700 (Tenn.Ct.App. the classification of all assets ac 2005); Anderton, Anderton v. quired spouse during 988 S.W.2d either the mar 675, (Tenn.Ct.App.1998). riage 679 Tennessee begins presumption is with the that the Smith, Fox, property” a “dual state. Smith v. asset is marital. Fox v. No. M2004- 871, 02616-COA-R3-CV, 2535407, 93 875-76 (Tenn.Ct.App.2002). 2006 WL 2006) (No property Accordingly, (Tenn.Ct.App. Sept.l, cannot be included *4 Tenn. filed). in the marital estate it R.App. application party unless fits within P. 11 A the definition of “marital in property” asserting acquired during that an asset the 36-4-121(b)(1)(A) marriage separate property is has the bur (2005). token, By “separate proving by preponderance the same den of of the
486 B. separate proper
evidence that the asset is Heede, ty. Goulet v. No. E2000-02535- The Classification of the 126279, COA-R3-CV, at *5 2002 WL Raton Boca House 2002) (No Tenn. (Tenn.Ct.App.Jan.31, filed); R.App. Dunlap 11 v. application P. turn trial We first to the court’s decision (Tenn.Ct. 803, classify Mr. Owens’s interest in the Dunlap, 996 S.W.2d 814 Raton as marital property. Boca house App.1998). types The of that will evidence though paid he that he Even concedes that presumption to rebut the be sufficient per help in marital month funds $150 during marriage an asset the is acquired house, the the Mr. mortgage on Owens pay marital are in Tenn.Code property found classifying that the marital insists house as 36-4-121(b)(2)(B)-(F). §Ann. was because property parents error his paid portion mortgage of the also a trial court has classified After property part- the to the because title parties’ the as marital or property either ly in his name. brother’s separate, place val it should a reasonable subject to piece property ue on each of parents purchased Mr. Owens’s Davidson, division. v. No. Davidson they house Boca Raton when moved M2003-01839-COA-R3-CV, 2005 WL Memphis. from Mr. and his there Owens * 2005) 2860270, Oct.31, 2 (Tenn.Ct.App. parents the earnest brother loaned his filed). (No P. 11 R.App. application money, Tenn. later his brother assumed Edmisten, money mortgage. Mr. Owens’s earnest M2001-00081- Edmisten v. No. his paid parents loan was off when sold 21077990, COA-R3-CV, at *11 2003 WL Eventually, home in Mr. Memphis. their 2003) (No 13, May Tenn. (Tenn.Ct.App. him one-half quitclaimed Owens’s brother filed). R.App. par The application P. Thereafter, interest property. ties must come forward with themselves parents a life granted their two brothers v. competent evidence. Kinard valuation Mr. fa- in the property. estate Kinard, 220, (Tenn.Ct.App. 986 S.W.2d trial, at the time of ther died but Wallace, 1998); Wallace v. 733 S.W.2d residing was still Mr. Owens’s mother valuation (Tenn.Ct.App.1987). When twenty house. approximately For conflicting, may place evidence is court Mr. used marital funds to years, property a value on the that is within help per defray pay month $150 range represented by all the the values expenses. mortgage relevant valuation evidence. Watters (Tenn.Ct. Watters, does not evidence Brock, App.1997); Brock that his interest Mr. Owens’s contention (Tenn.Ct.App.1996). Decisions separate property is the Boca Raton house regarding property value of marital his It parents. it from gift because was a Kinard, questions fact. are Kinard essentially is undisputed Mr. Owens they are Accordingly, at 231. an owner of record great weight appeal entitled and will that, he twenty years, used *9 they are not second-guessed not be unless pay mortgage proper on the funds to the of the evi supported by preponderance sufficient to ty. This evidence is Smith, 875; dence. Smith Mr. classify the trial court’s decision (Tenn.Ct. house Ray Ray, in the Boca Raton Owens’s interest as marital App.1995). property.
c. 36-4-121(b)(1)(A); § divided. Tenn.Code Ann. Manis, Man Property The Valuation Marital Therefore, (Tenn.Ct.App.2001). Ms. Owens takes trial issue with the rather than about the value of speculating house, court’s valuation of the Boca Raton the Boca Raton house without the life es home, the marital and Mr. Owens’s inter- tate, parties provided the should have the realty est in company. his She asserts present using court with evidence of value regarding the trial court’s decisions 67- methodology the value of each of these interests are not (2006) 8-310 or some other similar meth supported by the agree evidence. We with odology. By failing present evidence of Owens, only regard Ms. but with to the sort, this left the trial parties court to value of the Boca Raton house. guess property’s about the current value. guess trial court based its on
The Boca Raton House payments Mr. Owens made over twen At the time of the hearing, divorce ty years help pay mortgage down the on Mr. Owens and his brother were co-owners approach the house. This failed to take of record of the Boca Raton house where appreciation into consideration the in the their mother lived. Their interest was during house that time. Accordingly, the subject to a life they granted estate had court should have based its calculation of their mother. The market value of the the value of the house on its fair market $200,000; however, house was there was a value at the time of the divorce. Without $6,000 mortgage $9,000 of between on taking the value of the life estate into the house.1 Mr. testified that he consideration, the value of Mr. Owens’s $36,000 had used in marital help funds to interest the house at the time of the pay mortgage on the house. While $100,000. divorce is Mr. Owens’s mother’s Ms. Owens insisted that the value of Mr. value, life estate had and it would have interest the house should be appropriate been to consider it had either $97,000,2 the trial court determined that party presented admissible evidence. Nei $20,000. his interest should be valued at ther the trial court nor court can this haveWe determined that trial speculate about what this evidence would court erred in placing Thus, a value on Mr. Ow have been. in the absence of evi ens’s interest in the Boca Raton regarding house. dence the value of the life es placed tate, The value trial court should have valued Mr. should, as near as possible, reflect Owens’s share the Boca Raton house at $97,000.3 value of the property on the date that it is evidently dispute
1. There is requested some about the 3.Ms. Owens has this court to con- outstanding mortgage. pro- Ms. Owens's post-judgment regarding sider facts the death posed division of marital assets sets the out- mother, of Mr. Owens’s the current state of $6,000. standing mortgage amount at Mr. house, the title to the Boca Raton $7,000 approximately Owens testified that re- property’s value. While the death of Mr. Ow- mained, while his brother testified the ens’s mother and the current of the title state $9,000. amount was closer to No bank docu- demonstration, may capable ready we concerning mortgage appear ments in the decline to consider the valuation of the Boca record. appeal Raton house in 2007 because this in- volves a divorce decree that handed of Mr. [value interest]- Owens's down in 2004. = mortgage [½ of the balance] $97,000. *10 to an expert fications render valuation
The Marital Home and, fact, specifically waived her opinion the also that Owens asserts Ms. opportunity to voir dire him. she While in its the trial court erred valuation of object appraiser’s opinions the did not to that marital home. She insists parties’ on when he offered them direct examina- $345,000 valuing high the at too home is tion, regarding she him his cross-examined methodology and that the of Mr. Owens’s methodology and his conclusions.4 appraiser have deter was flawed. We placed that the trial factual methodology mined the value court When the or range expert’s opinion patently on the was within the basis for an marital home flawed, the can and discount presented by the the courts should of valuation evidence Clement, opinion. the Clement v. No. parties. W2003-02388-COA-R3-CV, 2004 WL Mr. re- presented opinions Owens three Dec.30, at (Tenn.Ct.App. *9-10 garding the of the marital home. He value (Tenn. denied, 2004), 27 & perm app. June the himself testified that value of the home 2005). Aug. have reviewed the We $400,000. ap- presented was He also an testimony appraiser of Mr. Owens’s its who that praiser testified the house was entirety, particularly testimony regard- his $385,000. Finally, presented worth he application the of the Na- ing American who that was realtor stated the house (ANSI) guide- tional Institute Standards $425,000 worth between after lines, and we have determined that there is undertaking repairs the that would be re- to completely opinion no basis discount his remedy problems by to the caused quired regarding parties’ value of the the pre- deferred maintenance. Ms. Owens home. an who the house appraiser sented valued ap opinion Mr. Owens’s $305,000. evidence, the Based this only testimony the was not the praiser trial court that the house determined value of regarding trial court received $345,000. be valued at should trial court parties’ marital home. The this aim at appeal, On Ms. Owens takes testimony Owens also of Mr. received methodology appraiser. of Mr. Owens’s himself, on behalf realtor who testified he the manner in which challenges She Owens, by appraiser employed an Mr. to pool house and decision valued his testimony, the on this Ms. Owens. Based having age” treat the as “effective home at the of the marital home parties’ value years than to of ten rather the fifteen was be time of divorce somewhere twenty years by used Accord- expert. $425,000. The trial tween Owens, to Ms. these in Mr. Ow- ing flaws $345,000. This court valued the house expert’s valuing the approach ens’s no to second- provides record us with basis are trial court so serious that the the trial court’s valuation decision. guess disregarded expert’s opin- should have entirety. ion in its Mr. Interest in Prudential Owens’s Realty Woodmont ap- to dismiss Mr. We decline praiser’s testimony argues out of hand. Ms. Ow- Ms. also that Mr. Owens’s object quali- valuing did not to the trial court erred appraiser’s ens ought really go to response I proffer In of the ed. So think court’s dire, lawyer objection witness for voir Ms. Owens’s No formal cross-examination.” Honor, "No, going to replied, I am Your but testimony any portion appraiser’s objections testimony to his because have some made. provid- appraisal that was of the nature of the *11 twenty percent interest in purchased Prudential self testified that he his interest $7,500 Realty $117,000. at company Woodmont She insists in the in 1990 for and that that Mr. expert’s valuation of this pur- Prudential Woodmont had at “against logic” interest is percent a sixteen in the chased interest only that the credible evidence of the value back from a business former owner of expert’s opinion $80,000. this interest her that Mr. Owens’s interest in the business obviously agreed The trial court $221,000.
was worth According to Ms. expert Mr. Owens’s had undervalued his Owens, the court was left no choice with interest the business. The trial court other than to accept expert’s her valuation eventually valued Mr. Owens’s interest at opinion. disagree. We times more than the value —four placed by on the interest Mr. Owens’s
Placing minority value on a expert. light In of the other evidence of interest in a business is not an exact sci record, value the the trial court was not ence. In the face conflicting opinions of obligated accept opinion to of Ms. Ow- asset, regarding the value of a marital expert. ens’s Because the value the trial may trial place court a value on the asset placed court on Mr. Owens’s interest that is within range pre of the values range Prudential Woodmont within sented competent evidence. Ki presented by of competent values evi- Kinard, 231; nard Wal dence, second-guess we decline to part this Wallace, lace v. 107. Since of the trial court’s decision. valuation evidence is inherently subjective, a trial court’s valuation decisions need not
coincide precisely with the opin valuation III.
ions offered into evidence. Waits v. The Division of the Maiutal Estate Waits, 01A01-9207-CV-00288, No. parties Both are dissatisfied with the Feb.26, WL at *3 (Tenn.Ct.App. 1993) (No manner which the trial court divided R.App. Tenn. P. 11 application filed). argues their marital estate. Ms. Owens essentially equal that the trial court’s divi- Ms. Owens asserts that opinion sion of the net marital estate fails to take expert Mr. Owens’s adequately did not adequate account of her relative economic account for the additional income that Mr. disadvantage. part, For his Mr. Owens Owens earned because required he was that the division insists favors Ms. Owens share less of his commissions with the by awarding and that the trial court erred company than agents other affiliated parties equal both in the interest However, were.5 if even Ms. suc- Partnership. Pruett-Owens cessfully evidentiary undermined weight of expert, expert’s Mr. Owens’s A.
opinion only remaining was not the evi- regarding dence the value of Mr. Owens’s the parties’ Once valued, interest in the business. Mr. Owens him- has been trial classified Apparently agents all the brokers and the owners of Prudential are re- Woodmont required pay Prudential Woodmont are six quired pay percent six of their commissions percent of their Financial, commissions to Prudential they required to Prudential are not addition, agents pay Financial. In must pay any portion of their commission to twenty thirty percent between of their Prudential Woodmont. commission to Prudential While Woodmont. *12 the applied legal trial court correct goal proper court’s to divide the marital the is equitable standards, ty essentially in an manner. in which whether manner 4—121(a)(1); § Miller Ann. weighed Tenn.Code trial court in Tenn. factors 36— (Tenn.Ct. Miller, 771, 36-4-121(c) 775 v. 81 S.W.3d §Ann. is consistent with Code property of App.2001). A division marital reason, trial logic and and whether inequitable simply is not because rendered the marital is property court’s division of Rob precisely equal, it is not v. Robertson Jolly, at equitable. Jolly v. 130 S.W.3d ertson, 337, (Tenn.2002), 341 76 S.W.3d Gratton, 785-86; v. No. M2004- Gratton 823, Cohen, v. 937 832 Cohen S.W.2d 01964-COA-R3-CV, 794883, at 2006 WL (Tenn.1996), not party each did or because 2006) (No Mar.28, Tenn. (Tenn.Ct.App. *7 every a marital piece receive of of share filed); P. 11 v. R.App. application Kinard Morton, property, Morton v. 182 S.W.3d Kinard, at 231. 986 S.W.2d 821, (Tenn.Ct.App.2005); Manis v. 833-34 Manis, of 49 at 306. The fairness S.W.3d The division of marital es inevitably re approach the trial court’s the mari tate includes both the division of Altman, flected in v. its results. Altman the mari property tal and the allocation of 676, (Tenn.Ct.App.2005); 683 181 S.W.3d completely have not tal debt. Trial courts (Tenn. Bolin, 102, Bolin v. 99 S.W.3d 107 they a marital estate until have divided Ct.App.2002). marital property allocated both the Robertson, marital Robertson v. debt. dividing a approach
The 341; Hopkins Hopkins, at v. mechanical, 76 S.W.3d marital not estate should M2002-02233-COA-R3-CV, 2003 WL No. carefully weighing but rather should entail 25, 21462971, (Tenn.Ct.App. at June *6 the relevant factors 36-4-121(c) 2003), grounds, other 152 light part of the evidence rev’d in Flannary (Tenn.2004); v. parties presented. 447 v. An have Anderton S.W.3d 650-51; derton, v. Flannary, Thus, 121 at Tate S.W.3d at 679. an ex 988 S.W.2d Tate, 872, (Tenn.Ct.App. 875 trial of manner amination which Kinard, 2003); Kinard must property divided the marital court have 230. Trial courts broad discretion trial court into how the take consideration fashioning equitable division of debt. allocated marital property, Jolly Jolly, Fisher, (Tenn.2004); 648
785 Fisher v. B. (Tenn.1983), appellate S.W.2d 246 es- party trial awarded each court a trial great weight courts accord must of the marital estate. sentially equal shares property. court’s division of marital Wil parties’ mari- its (Tenn. Based on valuation Moore, S.W.2d son debt, Mr. Owens Batson, property tal and marital Ct.App.1996); Batson v. asset division valued received net our Accordingly, it is not $408,705, a net Owens received Ms. manner in a trial role to tweak the which $404,368. The trial court’s divi- property. the marital award court has divided Morton, and allocation of marital at 834. sion Morton v. Rather, whether marital debt was as follows: our role is to determine Property
l Husband Wife $345,000 Raton property Boca 20,000 Residence Marital Pruett-Owens $ 149,689 134,250 Partnership partnership GOP 27,592 117,000 policies Realty Insurance Prudential Woodmont 15,000 167,450 partnership furnishings Ragghianti-Owens Household 134,250 56,550 partnership IRA SEP Pruett-Owens 32,366 policies Insurance 15,000 furnishings Household 56,550 IRA _ SEP
Marital Debt Wife Husband 93,000 $100,000 mortgage mortgage 1st home 2nd home $ —marital —marital 81,024 80,000 Credit card debt Premier unsecured credit line 25,000 Suntrust unsecured credit line 38,000 Plus loans 13,000 Realty Prudential Woodmont 9,600 Doctor bills 18,000 Express American bill $174,024 $283,600 $404,368 $408,705 Net Award (49.7%) (50.3%) avoid, property Two of the in interests sions are often structured to when in cluded the martial estate were Mr. Ow possible, requiring parties to re- divorced ens’s in partnerships. interests two in together jointly main business or to own first is the partnership.6 Pruett-Owens require cooperation an asset that will and The second the Ragghianti-Owens partn mutual consent down the road. We have ership.7 The trial court par awarded the determined that there is for this basis equal ties interests in the Pruett-Owens regard concern with to the trial court’s partnership, but awarded Mr. Owens all of to parties decision award both share of his in Ragghianti-Owens interest the part partnership. Doing the Pruett-Owens so nership despite Ragghianti’s willing Mr. required was not to order divide ness to continue the partnership with Ms. an equitable estate because divi- partner Owens as rather than Mr. Owens. sion could have been accomplished The manner in which the trial awarding Ms. Owens the marital interest properties court divided these raises some Ragghianti-Owens partnership in the concern it necessarily requires because awarding Mr. the martial interest Mr. Owens and Ms. Owens to remain partnership.8 the Pruett-Owens matter, together. general business As a Accordingly, many we have determined that parties post-divorce divorced find co difficult, operation adjustments property thus divi- three must be made to the Ray operate, manage proper- 6. Mr. Owens and Pruett formed the two residential own, partnership manage, Pruett-Owens ties and a vacant lot. pieces prop- and rent three out of residential erty. managed by One of the houses division, light 8.In of this Ms. Owens will also partnership jointly is titled in the names of required convey be in one of interest Ms. Owens and the wife of Mr. Pruett. properties managed by the Pruett-Owens partnership to Mr. Owens. Ragghianti 7. Mr. Owens and James formed own, Ragghianti-Owens partnership Third, be awarded to Ms. Owens. trial court’s division of the marital estate.
First, the value of Mr. Owens’s interest part- in the parties’ interest Pruett-Owens the Boca Raton house at time of to Mr. Owens. nership should be awarded should increased from divorce adjustments, With these the division $97,000. Second, parties’ interest is as marital estate follows: Ragghianti-Owens partnership should Property9
Marital Husband Wife 97,000 Marital Residence Boca Raton $ 149,689 167,450 Partnership Ragghianti-Owens partnership GOP 117,000 27,592 Realty policies Woodmont Prudential Insurance *14 268,500 15,000 furnishings partnership Household Pruett-Owens 32,366 56,550 policies IRA Insurance SEP 15,000 furnishings Household 56,550 SEP IRA $736,105 $611,592 Marital Debt Husband Wife 93,000 mortgage mortgage $100,000 home 2nd home 1st —marital —marital 80,000 81,024 line card Premier unsecured credit Credit debt 25,000 line Suntrust unsecured credit 38,000 Plus loans 13,000 Realty Prudential Woodmont 9,600 Doctor bills 18,000 Express bill American $283,660 $174,024 Award Net (50.8%) (49.2%) that IV. have also this modi- We determined estate properly fied division the marital Spousal Support Award Ms. Owens’s Ann. balances factors Tenn.Code trial also that Ms. Owens contends 36-4-121(e), § Ms. particularly Owens’s the dura- regard court to both erred with longtime and age, her status contributions support spousal tion amount of her and homemaker, as a difference be- economical- insists she is award. She anticipated her and Mr. tween comparison Ow- ly disadvantaged to Mr. Security Social benefits.10 spous- is to more ens and that she entitled factors
al relevant support based judgment pending We reserved table is corrected table referenced court level. 9. This Rehear, Opinion argument. on Petition to Because not modi- our oral we have Infra. insurance fied court’s division of the the trial asking a motion' us to 10. Ms. filed policies, unnecessary consider for us to it is consider, post-judgment, the fact that Mr. post-judgment fact. already in one the life Owens has cashed policies awarded the trial insurance he was at
493 36-6-1216) (2005). filed), but rather R.App. application § P. 11 Ann. We ap trial court whether the agree. to determine legal correct standard plied the A. clearly un that is not reached a decision and fast There are no hard Bogan Bogan, v. 60 S.W.3d reasonable. Man spousal support rules for decisions. (Tenn.2001). 721, 733 Manis, 304; at Anderton v. is v. 49 S.W.3d recognizes several Tennessee law
Anderton, 682; v. Crain 988 S.W.2d in spousal support, Crain, separate classes of (Tenn.Ct.App. 233 1996). periodic spousal support cluding long-term Trial courts have broad discretion solido,12 futuro),11 alimony in support (alimony spousal to determine whether and, so, nature, amount, support,13 if its and tran spousal needed rehabilitative Bratton, duration. Bratton v. spousal support.14 Tenn.Code sitional Burlew, (Tenn.2004); 36-5-121(d)(2) statutory Burlew reflects a (Tenn.2001); Goodman spousal preference favoring rehabilitative (Tenn.Ct. Goodman, support spousal and transitional courts App.1999). Accordingly, appellate support. long-term periodic spousal over second-guess generally are disinclined Bratton, 605; Bratton *15 trial un spousal support court’s decision 465, 114 467 Perry Perry, v. S.W.3d supported by less it is not the evidence or (Tenn.2003). However, statutory this contrary public policies to the reflected entirely displace not the preference does applicable in the statutes. Nelson v. Nel spousal support other forms of when son, 20, (Tenn.Ct.App.2002); 106 S.W.3d 23 long-term or facts of the case warrant Brown, 163, Brown v. 913 169 S.W.2d Aaron v. Aar open-ended support. more (Tenn.Ct.App.1994). Our role is not to (Tenn.1995). on, 408, 410 909 S.W.2d spousal support fíne tune a trial court’s spousal sup
award, Fox, 2535407, purpose The of v. at Fox 2006 WL n 9; to Hartman, port disadvantaged spouse is to aid the v. No. E2000- Hartman and, 01927-COA-R3-CV, 823188, and remain self-sufficient 2001 at become WL 2001) (No 20, is not feasi- July *7 Tenn. when economic rehabilitation (Tenn.Ct.App. Long-term periodic training spouse to achieve spousal support 11. is in that will enable provide long-term support an living comparable tended to to a standard of and maintain economically disadvantaged spouse who is during living existed to the standard of Burlew, unable to be rehabilitated. Burlew v. marriage post-divorce standard or to 471; Loria, 40 S.W.3d at Loria v. living expected to the other to be available 836, not, 1997). (Tenn.Ct.App. It is how 838 36-5-121(e)(1) § spouse. Ann. ever, guarantee recipient spouse that the Robertson, (2005); 76 see also Robertson v. enjoy lifestyle equal will be able forever to 340-41; Smith, at Smith v. 912 S.W.3d Quil obligor Wright spouse. v. to that of the 155, 1995). (Tenn.Ct.App. 160 S.W.2d len, (Tenn.Ct.App.2002). 773 paid spousal support is for a 14.Transitional Alimony single lump in solido is a sum a court finds that re- definite duration when payment property. alimony of cash or Unlike necessary futuro, not but that the eco- habilitation is judgment, it a final is considered spouse nomically disadvantaged needs assis- ordinarily unchangeable by the court after consequences expiration appeal. adjusting Loria v. of the time for tance to the economic Loria, § S.W.2d at 838. 952 36-5- Tenn.Code Ann. of divorce. 121(d)(4). spousal support is intended 13. Rehabilitative economically disadvantaged to enable spouse acquire education or additional 494
ble, begun receiving disability payments from mitigate the harsh economic reali- Earls, Administration in the amount 42 the Veterans ties of divorce. Earls v. S.W.3d flow per month. His cash (Tenn.Ct.App.2000). di- While pay by affected his commitment to couples often lack income also vorced sufficient ex- undergraduate children’s education or to enable both of them to retain assets private colleges large living, penses Brown pre-divorce their standard of Brown, 169-70, of unsecured debt allocated to him the obli- amount 913 S.W.2d at parties’ mari- may provide part some as of the division of gor spouse be able to tal estate. “closing money” to enable the disadvan-
taged spouse
approach
his or her for-
teaching
had a
certifi-
While Ms. Owens
Aaron,
financial
Aaron v.
mer
condition.
cate,
actively employed
not
she had
been
to receive. V. have may medical condition Mr. Owens’s AttoRney’s Request Ms. Fees for it has not expectancy,
reduced his life but ability to to work. impaired his continue that the trial court contends Ms. Owens income far exceeds Ms. Ow- expected His attorney’s refusing to award her erred Thus, he re- anticipated ens’s income. economically disadvan- fees she is because him- position support in a to mains better For to Mr. Owens. taged comparison in assets, self, acquire capital to to continue asserts that Ms. Ow- part, his Mr. Owens provide to for his retirement. "While resources to ens has received sufficient adjust parties required both will be therefore, and, attorney’s fees pay her own lifestyles post- their their accommodate correct. trial court’s decision was circumstances, Mr. Owens remains divorce has the better find that Ms. Owens We in to hon- able to himself addition argument. chil- oring pay his commitment to for his private colleges dren’s educations at and to litigants Tennessee’s Civil the marital he paying off debt which respon generally required courts are be responsible. Based on this will now in the attorney’s their fees sible for own record, any to reach hard-pressed we are provi or contractual absence of a statute other than conclusion that Ms. Owens is Kohl & Co. v. Dear sion otherwise. John economically disadvantaged comparison (Tenn. Ewing, 977 born & to Mr. Owens. 1998); Mut. Ins. Mass. Co. Life Jeffer son, (Tenn.Ct.App.2002). Based the factors Tenn.Code cases, In relations three of domestic 36-5-121(i), particularly length at circumstances which most common parties’ marriage, their relative edu (1) include: torney’s appropriate fees are cation, man training, experience, disadvantaged economically the trial court awards ner which divided (2) estate, awards to parties’ age spousal support, and the as spouses *17 health, have that Ms. Ow to en we determined who must return to court spouses (3) alimony to rehabilitative in obligations, ens is entitled support force child § accordance with Tenn.Code Ann. 36-5- to enforce a spouses seeking to awards 121(e). However, agree we do not on the agreement when marital dissolution amount or duration of the trial court’s a for attor agreement provision contains alimony have de rehabilitative award. We Elliott, 149 ney’s fees. Elliott v. S.W.3d spousal support termined that Ms. Owens’s (Tenn.Ct.App.2004). 88 $3,000 per should be increased to month attorney’s to An award of fees that Mr.
beginning May 2007 and disadvantaged spouse is economically an pay should continue to Ms. Owens alimony in solido. usually characterized as support at the rate of rehabilitative (Tenn. Yount, 777, 783 Yount v. 91 S.W.3d This through November 2012. per month Wilder, v. Ct.App.2002); Wilder in the court’s control support shall remain Accordingly, a trial court consider cir- at 894. may parties’ modified as the be 36-5-121(e)(3). 36-5-121(e)(2). §Ann. § 16. See Tenn.Code Ann. 15. See Tenn.Code 496 cannot her attor attorney’s pay fees must con Ms. Owens
ing request a for being deplete forced to ney’s sider the factors contained fees without 36-5-121(i), eventually impor with the most that she will use to the assets being tant factors the need of the economi has support herself retirement. She cally spouse ability and the disadvantaged rely upon to her credit already forced been obligor spouse pay. Eldridge to v. portion legal of her pay cards to for a (Tenn.Ct. 1, 24-25 Eldridge, 137 S.W.3d alimo expenses. While the rehabilitative Miller, App.2002); Miller v. defray living her ny help award will her customarily 775. Trial courts will award pay her to expenses, it will not enable attorney’s alimony fees as when an eco $22,248.52 lawyer her remaining she owes nomically disadvantaged spouse would oth in the trial court.17 for services rendered deplete in order erwise be forced assets Therefore, by failing the trial court erred attorney’s Koja Koja, v. 42 pay fees. alimony in Ms. Owens solido award (Tenn.Ct.App.2000); Palmer S.W.3d legal expenses in the the amount of her (Tenn.Ct. Palmer, $37,948.52. trial court— Therefore, party a need not App.1977).
required pay legal expenses out of funds VI. by the trial court and and assets awarded provide intended to future Request Ms. FOR Batson, 769 S.W.2d at income. Batson DISCRETIONARY COSTS that the trial Ms. Owens contends attorney’s fees as Awards of by denying request erred for court largely discretionary alimony solido are Owens, on the discretionary costs. Mr. Thus, appellate trial court. with the hand, contends that Ms. Owens’s other ordinarily will not interfere with courts in discretionary imprudently costs were attorney’s alimony in solido award for fees and should not be reimbursed. We curred appropriately trial did not unless the court that Ms. Owens cannot have determined exercise its discretion based on the facts. “prevailing party” be considered Aaron, 411; El Aaron v. S.W.2d divorce, therefore, and, ineligible she is dridge Eldridge, at 25. A discretionary costs. an award its discretion trial court fails to exercise 54.04(2) R. P. em supported not Tenn. Civ.
properly when its decision is pre award the evidence, the trial courts to applies powers when it an incor litigation expenses. standard, vailing party it certain legal rect when reaches deci “reasonable and reasoning expenses These include against logic which is or sion for de necessary reporter expenses court injustice party to the com that causes an Brown, trials, neces or reasonable and positions plaining. Biscan v. *18 (Tenn.2005). sary depositions fees for or 462, expert witness 468 errors, we determined that Ms. Ms. Ow- those have 17. The itemized bill submitted with attorney's request attorney’s for contained follows: ens’s fees has incurred fees as Owens correcting computational errors. After some ($50 hour) per 752.50 legal 15.05 assistant hours ($1 Faxes, per page) pages 123.00 Incoming 123 Faxes, ($0.50 per page) 125.50 Outgoing pages 251 Mise, 72.52 payments Ms. Owens made on behalf of (15,700.00) payments Less received
497 M2001-00619-COA-R3-CV, 2002 WL trials, guardian ad litem fees.” 30, 773059, (Tenn.Ct.App. April awarding these costs is not at *11 purpose of (Tenn. 2002) 21, losing party but to make punish Oct. perm. app. denied party Scholz v. S.B. prevailing 2002). whole. case, party In this neither Inc., Int'l, 78, (Tenn.Ct.App. 40 85 S.W.3d the trial the divorce because awarded 2000). not auto though party Even is divorced parties declared the simply court of discre matically entitled to award §Ann. 36- in accordance with P. tionary costs under Tenn. R. Civ. 4-129(b) (2005). party Because neither 54.04(2) Ben prevailed, because it simply case, must at fault in this we was found Valley Coop., Elec. 868 v. Tennessee son Ms. to determine whether look elsewhere 630, (Tenn.Ct.App.1993), prevail should be deemed Owens discretionary award costs generally courts R. purpose of Tenn. Civ. ing party for if they party if are reasonable and 54.04(2). P. timely, proper them has filed a requesting ly satisfying require motion supported grounds for di Aside from 54.04(2). R. P. Scholz ments of Tenn. Civ. vorce, in this contested issues the most Int'l, Inc., 84; v. at Stals S.B. mari on the valuation of the case centered Grummons, 832, v. 36 S.W.3d worth of the marital tal and the division (Tenn.Ct.App.2000). amount, type, and the and duration estate discretionary support requested by
Awards of costs Ms. spousal are, naturally, decisions that lie within the party clearly prevailed on Owens. Neither sound of the trial court. discretion Stals The trial court’s decisions these issues. Grummons, 835; worth v. proper regarding the value of the 343, v. Gray, Sanders rather took ty not favor either side but did (Tenn.Ct.App.1998). The trial court is their valuation a middle course between among parties free allocate costs as the Similarly, though even Ms. testimony. equities of the case demand. Tenn.Code prevailed request spous on her for (1994); §Ann. 20-12-119 Perdue Green far less than she support, al she received (Tenn. Co., Branch Min. is eco finding spouse A that a requested. 1992). Therefore, a deferential employ we nomically disadvantaged not automat does either reviewing standard when decisions dis ically right translate into a to recover discretionary deny to award or to costs. Walker, No. cretionary costs. Walker M2005-01561-COA-R3-CV, 2006 WL discretionary costs are When (Tenn.Ct.App. May at *6 cases, they gener in divorce are awarded 2006) (No R.App. application P. 11 Tenn. ally spouse granted to the awarded who filed). record, this we are unable to On See, e.g., Buchanan v. Bu the divorce. party prevailed. which There- determine chanan, E2002-00915-COA-R3-CV, No. fore, dis- trial court did not abuse its (Tenn.Ct.App. 2003 WL *3 2003) (No re- cretion it refused Ms. Owens’s Feb.25, ap P. 11 when R.App. Tenn. filed); discretionary quest No. costs.18 plication Galligan Galligan, $22,248.52
Total Due matter, proof questioned or make an offer of thereon. 18. As a final Ms. Owens matter Shredders, *19 103(a)(2); appeal whether the trial court erred in Inc. on Evid. Tire Tenn. R. 849, failing Cent., Inc., Ms. Owens to read to allow counsel for 864 v. ERM-North deposition the record. the However, of Mr. Owens into timely Ms. Owens did not make objection court’s on the trial stance 498 However, opinion. the award of
VII. furnishings worth of household judgment of trial court af- is in the Mr. Owen was not reflected table of remand to firmed as modified herein. We ap- the marital estate the division of as proceedings the trial court for further con- Therefore, proved by this court. the sec- opinion. this tax costs in sistent with We illustrating ond table this court’s revisions Emery for this matter to James to the division of the marital estate has execution, necessary, may if issue. which body opinion. been corrected in the of the PETITION OPINION DENYING Adding to Mr. Owens’s side of FOR REHEARING necessarily change results in a ledger parties. in the net distribution to the KOCH, JR., P.J., WILLIAM C. M.S. receiving than of marital Rather 49.7% the timely petition Ms. Owens has filed a for court, trial estate as determined rehearing R.App. in accordance with Tenn. actually Ms. Owens will now receive 49.2%. court, in suggests P. 39. She that this our rehearing petition She insists her for (1) 29, opinion, equi- 2007 failed to March awarding that her 49.2% of the net marital (2) estate, tably failed to divide the marital inequitable. respectfully estate is We dis- request attorney’s address her fees on agree. (3) her dis- appeal, improperly denied cretionary incurred at trial. costs While awarding that argues Ms. Owens points that the raised we have determined marital estate only 49.2% of the net is require do not petition Ms. Owens’s Robertson, inequitable under Robertson v. modification of the conclusions our (Tenn.2002) 337, 341 and Crab opinion, we have deter- March 2007 Crabtree, 361 n. tree illustrating mined that the our divi- table (Tenn.2000).1 encourage trial Both cases page on 492 of sion of the marital estate provisions for appellate courts to make opinion should be to more ac- revised disadvantaged spouse through the divi curately reflect our decision. Our division of sion of the marital estate. estate, to the particularly regard with
I. debt, marital our adherence to that reflects re concept. charged Mr. Owens is with parties’ agree- In accordance with the ment, substantially all of the payment the trial court’s division of the mari- $300,000 in debt, party tal to each which consists of almost estate included award Owens, $15,000. largely unsecured liabilities. Ms. furnishings of household valued at hand, responsible made accurately reflected in the on the other This division is $93,000 mortgage and for only and 9 of for a appears pages first table that long- of rehabilitative and (Tenn.Ct.App.1999). we addressed the concurrent awards Had issue, that there is appropriate. we would have determined alimony not Crabtree term were However, evidence in the record to indicate that the no Crabtree, at 360. would have been different outcome trial Assembly later amended Tennessee General deposition testimony been read di had 36-5-121(d)(4) (2005) Tenn.Code Ann. rectly Pankow v. Mitch into the record. See alimony in addi authorize in futuro awards ell, (Tenn.Ct.App.1987). alimony awards. See tion to rehabilitative Further, Ms. Owens conceded as much in her Anderson, No. M2005-02029- Anderson brief. COA-R3-CV, (Tenn. 2007 WL at *5 Mar.29, 2007). Crabtree, Ct.App. the Tennessee Su In Crabtree v. held, things, preme among Court other
499 “re we decline to ney’s appeal, in fees on card that she in credit debt her on the matter. hear” separation from Mr. Ow curred after her already explained, ens. As we have III. of the Owenses’ marital estate was division issue our Finally, Ms. Owens takes with the factors balancing after careful made affirm the trial court’s decision decision to 36-4-121(c), § with in discretionary costs. for deny request her Owens’s particular paid attention to Ms. pre- that she was the against insists She homemaker, and contributions as a age, we erred as at trial and that vailing party security benefits. anticipated social denying in her that status. a matter of law Therefore, Ms. Owens we decline to rehear in claim does not find Ms. Owens’s marital to the division of the respect with only notes that the Ms. Owens the law. estate. opin- Court Supreme Tennessee published subject finds that on the matter ion II. is the one who successful- prevailing party suggests that Ms. Owens also par- another ly against maintained a claim for attor request failed to address her we (7 Cates, McReynolds v. 26 Tenn. ty. However, she over ney’s appeal. fees on (1846). Hum.) 29, points She also 30 request fact that she did not looks the 134, Traughber, 884 McIntyre original appellant’s attorney’s fees court (Tenn.Ct.App.1994), which this 138 reply It not until she filed her brief. was “pre- a litigant a determined whether that Ms. mentioned that she brief purposes for the of the Fed- vailing party” attorney’s like to fees would be awarded Act, Rights U.S.C.A. eral Civil reply A brief is a appeal. incurred on (2003). McIntyre To the extent arguments appellee. to the response in- present relevant for our Traughber is raising a new issues. It is not vehicle for party’s that a success quiry, suggests it 27(c); P. Denver Area Meat R.App. Tenn. party if that more than technical must be Plan v. Employers prevailed.2 Cutters & Pension have is to considered to (Tenn.Ct. 584, Clayton, 209 discussed, Ms. previously have As we drafting appellant When an App.2006). are, victories, he they such that Owens’s brief, upon appellant it incumbent is convincing the trial court primarily review, R.App. raise the issues for Tenn. her and Mr. a road between choose middle 27(a)(4), precise P. and to state “the relief valuations of 27(a)(8). sought,” R.App. Tenn. P. Be in much alimony award obtaining attorney’s generat an award of fees cause that we suggests way. same Ms. Owens appeal a form of pursuing ed ... to how how she fared “compare should relief, requires and, rule it to be stated. fare,” her to wanted Owens] [Mr. Ford, Inc., that, v. Ted Russell Killingsworth determine that she from we should (Tenn.2006). This is party Because at trial. prevailing was the Indeed, Mr. Ow- attor an unworkable solution. timely request failed to Ms. Owens against another co-de- opin- costs co-defendant 2. Ms. Owens also cites memorandum fendant, Supreme Special though Worker’s had ion Court’s even the co-defendants Jones, Panel, No. Compensation Allen v. against each other. This not asserted claims 02S01-9512-CV-00127, WL well-established merely reinforces the case (Tenn. Comp. Aug. *4 Workers’ Panel party suc- prevailing is one who idea that a (Tenn. 1996), Nov. motion review denied against par- cessfully another asserts a claim 1996), discretion- which reversed an award of ty- ary had awarded because the trial court costs *21 argument could make the same ens theory pre- that he is the
support of the Although parties to
vailing party. divorce may
actions often consider themselves to war, court’s ultimate
be combatants ending marriage
role in is to arrive at
equitable parties. treatment for both As opinion,
we noted our March always do not make for
such circumstances and “losers.” The record
clear “winners” “prevailing does not reveal a this case did, if it not
party.” Even Ms. Owens has can
demonstrated how the trial court be deny- abused its discretion
said have
ing discretionary her an of costs. award
Accordingly, we decline to rehear her on
the matter.
IV. to rehear. deny petition Ms. Owens’s
We
However, also direct the table we of our March
appearing page by the revised opinion replaced
table contained herein. We tax the costs Al- petition rehearing this for to Linda
of surety for
exander Owens and her which
execution, necessary, may if issue. SHELBY, OF A Political
COUNTY
Subdivision State
Tennessee TOMPKINS, R. et al.
John Tennessee, Appeals
Court of
at Jackson.
Assigned On Brief Jan. 2007.
July Appeal
Application Permission by Supreme
Denied Court 19, 2007.
Nov.