Peggy Diana Schroer v. Richard Michael Schroer ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 23, 2011 Session
PEGGY DIANA SCHROER v. RICHARD MICHAEL SCHROER
Appeal from the Chancery Court for Rutherford County
No. 09-0763DR David M. Bragg, Judge
No. M2010-01478-COA-R3-CV - Filed August 25, 2011
The trial court granted both parties an absolute divorce after a marriage of twenty-four years,
divided the marital property equally between them, and declared that neither party was to be
awarded alimony. The husband appeals, arguing that the property division was inequitable
because he came into the marriage with $500,000 worth of separate property while the wife
only owned a negligible amount of separate property at the time of the parties’ marriage, and
also because he was also the primary wage earner during the marriage. He also argues that
the trial court should have awarded him alimony. The wife asserts that the husband’s
separate assets became marital property over the years through the processes of commingling
of assets or transmutation, and that the equal division of that property was equitable. She
also denies that the husband is entitled to alimony. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT and R ICHARD H. D INKINS, JJ., joined.
Larry Hayes, Jr., Nashville, Tennessee, for the appellant, Richard Michael Schroer.
Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellee, Peggy Diana Schroer.
OPINION
I. A M ARRIAGE OF L ONG D URATION
Peggy Diana Schroer (“Wife”) and Richard Michael Schroer (“Husband”) married on
July 19, 1985. They raised a son and a daughter, who had reached their majorities by the
time of the proceedings described herein. On May 26, 2009, Wife filed a Complaint for
Legal Separation in the Chancery Court of Rutherford County. Wife’s complaint included
a request for pendente lite support and for a division of marital property that would enable
her to move out of the marital home. On June 1, 2009, the trial court appointed a Special
Master to hear all the interim issues in the case.
On July 15, 2009, the parties entered into an agreed order, by which Husband was
permitted to retain exclusive use of the marital home. He also obligated himself to use an
existing line of credit secured by the home to pay for an appraisal of the property and to give
$6,000 to Wife. Husband agreed to make interest-only payments on the line of credit,
pending further orders of the court. The parties agreed to work together to divide their
personal property and to mediate their differences after the home appraisal was completed.
The mediation was not successful.
On March 19, 2010, Wife filed an Amended Complaint, in which she asked for an
absolute divorce from Husband. The Special Master conducted a hearing on March 24,
2010, and filed a report containing findings of fact and conclusions of law. The Special
Master found that Wife had contributed to the maintenance and creation of the marital estate
and that she had a need “for some spousal support.” Husband was accordingly ordered to
pay her $500 per month as temporary support until the trial of the case.
On April 30, 2010, Husband filed an answer to Wife’s amended complaint and a
counterclaim for absolute divorce. He asserted that he was economically disadvantaged as
compared to Wife, because he was totally disabled and living on a fixed income. He
accordingly asked the court to order Wife to pay him alimony. In their pleadings, both
parties asserted that irreconcilable differences had arisen between them, and each alleged that
the other had been guilty of inappropriate marital conduct.
II. T HE F INAL D IVORCE H EARING
The final hearing of this case was conducted on May 6, 2010. The parties announced
to the court at the outset that it would be justified in declaring the parties divorced pursuant
to Tenn. Code Ann. § 36-4-129, rather than awarding the divorce to one party or the other.
They also announced that they had reached agreement on the division of the parties’
collection of stones and of the books in their extensive library. Because the parties had
agreed to take the question of fault out of contention, the divorce hearing focused almost
exclusively on financial matters.1
1
The record includes an exceptionally well-organized collection of 45 exhibits, including financial
and tax documents, deeds, photos, and a list of every book on the parties’ bookshelves.
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The forty-six year old Wife testified that she had earned a high school diploma, but
never went to college. The proof showed that she worked during the entire marriage, taking
time off only for maternity leave. She operated a daycare business out of her home for much
of the marriage, but possessed secretarial skills that she updated several years before the
divorce. At the time of trial, she held a job as a secretary in the athletic department at Middle
Tennessee State University and was paid $13.10 per hour. She was preparing to take a
certification test, and she anticipated that if she passed the test and obtained certification, she
would receive a 9% pay raise. Her 2009 income tax return showed an adjusted gross income
of $30,720.2 Her 401(k) retirement account had a value of $2,846 on December 31, 2009.
The forty-seven year old Husband earned a high school diploma and attended college
for two years. He began working for United Parcel Service about eleven years before the
parties married. He continued working there even after he was diagnosed with an advanced
form of throat cancer in 1998. He underwent surgery, which was followed by radiation
therapy. Although his doctors gave him only six months to one year to live, he has survived
far longer. He continued to work until 2007, when he underwent additional surgery for the
removal of the middle lobe of his right lung.
Husband testified that his radiation treatment had destroyed his salivary glands. He
can no longer swallow food, but has to feed himself through a tube in his stomach. Because
of this and other effects of his cancer and of its treatment, he tires easily and only has energy
for about three hours of activity a day. He was classified as totally disabled in 2007, and
began receiving social security disability checks of about $2,010 per month. He also receives
a pension from UPS that adds $3,040 to his monthly income.
The testimony of the parties shows that the Husband attempted to keep his finances
separate from Wife’s as much as possible during their marriage. In 1986, Husband inherited
$171,448 from his father, and he placed the money in a separate J.C. Bradford account. In
2002, his mother died, and he inherited $35,000 from her estate, and he deposited the
proceeds into his own bank account. Both parties had separate checking accounts. Wife
used her checking account to pay for food, clothing, healthcare expenses, the needs of the
children and other daily necessities. Husband used his checking account to make house
payments and to pay for utilities, taxes and insurance.
A considerable amount of testimony and other evidence involved the most valuable
asset of the parties: a 60.79 acre property at 4851 Vincion Road in Murfreesboro, upon which
are located the marital residence and several outbuildings. The parties agreed to place the
2
It appears that some of her income was derived from overtime hours she worked during the football
and basketball seasons at the University.
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appraiser’s report into evidence without requiring that the appraiser himself appear to testify.
According to the appraisal, the market value of the property was $575,000.3
Husband contended that although the parties acquired the Vincion Road property
during the course of the marriage, it should be considered his separate property because he
used his pre-marital assets to purchase it. He argued that even if it was deemed to be marital
property, he was still entitled to receive more than 50% of its value because of his
contribution to its acquisition. For her part, Wife contended that the Vincion Road property
was marital property, and she asked the trial court to divide it equally between the parties.
The proof showed that at the time the parties married, Husband owned a house and
54 acres of surrounding farmland on Bakers Grove Road near Percy Priest Lake. The farm
was not totally paid for, and Wife testified that Husband continued making payments to the
previous owner for years after they married.4 Husband testified, however, that “I had paid
over half the payments on that farm before I met her.” Wife also testified that the parties
bought an additional five acres during their marriage and added it to the Bakers Grove Road
property. For her part, Wife owned a house before the parties married and subsequently sold
it, but since the mortgage debt was greater than the value of the house, the sale did not result
in any net gain for the marital estate.
The parties lived in the house on Bakers Grove Road during the first two years of their
marriage. They then purchased a house on Red Oak Trail in a Murfreesboro subdivision for
$131,500 and lived there from 1987 through 1998. The house on Red Oak Trail was titled
in the names of both parties. After the parties moved to Red Oak Trail, Husband divided the
Bakers Grove Road property into two parcels that were sold separately. The home that the
parties had lived in and the 3.8 acres surrounding it were sold in 1996 for $84,400. The
remaining fifty acres were sold for $339,986 in 2004.
In 1996, the parties bought a tract of vacant land on Vincion Road for a purchase price
of $188,449, with the intention of building a new home for themselves on it. Husband used
funds from his separate checking account for the earnest money and the down payment. At
3
Although they allowed the appraisal to be admitted into evidence, the parties both disputed the
accuracy of the appraised value of the property. Wife noted that land adjacent to theirs had sold for about
$15,000 an acre and that in 2004 or 2005, a prospective buyer had offered Husband $1.2 million for their
property. Because of the decline in real estate values since that time, she estimated the property to be worth
$750,000. Husband pointed to some more recent sales of property in the area that fetched only $2,250 per
acre, and he contended that the current value of the property was therefore no more than $500,000.
4
Husband’s first wife quitclaimed any interest in the Baker’s Grove Road property by a deed that was
executed in 1980.
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Wife’s insistence, the Vincion Road property was titled in the names of both parties.
Husband testified that notwithstanding the legal title, he told Wife that he considered
the Vincion Road property to be his separate property because, from his point of view, he
was simply replacing the Bakers Grove Road property with the new property. For her part,
Wife testified that she did not agree because she was not willing to exchange the home she
co-owned on Red Oak Trail for a piece of property in which she would have no legal interest.
In 1998, the parties took out a $300,000 construction loan to build a house on the Vincion
Road property and they sold the home on Red Oak Trail for $187,000. The unpaid balance
on the construction loan was paid off from the proceeds of the 2004 sale of the last parcel of
the Bakers Grove Road property.
At the conclusion of the proof, the trial court announced its decision from the bench.
The court commended Husband for keeping detailed financial records, but held that the fact
that he kept those records and that he made house payments from an account in his own name
was not enough “to overcome the fact that these parties lived together as man and wife for
25 years and shared that life together . . . .” The court accordingly determined that the home
on Vincion Road was marital property, “based on the length of the marriage and the
contributions that each party made during the course of the marriage.” The court also
declared that two-thirds of Husband’s UPS pension was marital property, because it had
accrued during the parties’ marriage, while the other one-third of the pension had accrued
prior to the marriage and remained Husband’s separate property. See Tenn. Code Ann. § 36-
4-121(b)(1)(B); Kendrick v. Kendrick, 902 S.W.2d 918, 921 (Tenn. Ct. App. 1994).
The court decided that in light of the duration of the marriage, it would be most
equitable to divide the marital property equally. It accordingly gave Husband the option of
buying out Wife’s interest in the marital home for $250,000. If that did not occur, the home
was to be sold in accordance with a procedure set out by the court, with the net proceeds to
be divided equally between the parties. Two-thirds of Husband’s UPS pension was also
ordered to be divided equally between the parties through a Qualified Domestic Relations
Order. Wife’s 401(k) account was likewise to be equally divided between the parties,
through a separate Qualified Domestic Relations Order. Neither party was awarded alimony.
The trial court’s decision was memorialized in a Final Decree, entered on June 7, 2010. This
appeal followed.
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III. A NALYSIS
A. Property Division in Divorce Cases
Tennessee Code Annotated § 36-4-121(a)(1) authorizes the trial court in actions for
divorce or for legal separation to equitably divide, distribute, or assign the marital property
“without regard to marital fault in proportions as the court deems just.” The court is directed
to consider all the relevant factors in its distribution of marital property, including those listed
as follows in Tennessee Code Annotated § 36-4-121(c).
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of the
parties;
(3) The tangible or intangible contributions by one (1) party to the education,
training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets
and income;
(5) The contribution of each party to the acquisition, preservation, appreciation
or dissipation of the marital or separate property, including the contribution of
a party to the marriage as homemaker, wage earner or parent, with the
contribution of a party as homemaker or wage earner to be given the same
weight if each party has fulfilled his or her role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the equities between the
parties.
An equitable, or fair, property division “is not achieved by a mechanical application
of the statutory factors, but rather by considering and weighing the most relevant factors in
light of the unique factors of the case.” Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct.
App. 1988). In dividing the marital property, “[t]he trial court is empowered to do what is
reasonable under the circumstances and has broad discretion in the equitable division of the
marital estate.” Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007) (citing Flannary v.
Flannary, 121 S.W.3d 647, 650 (Tenn. 2003)). See also Jolly v. Jolly, 130 S.W.3d 783, 786
(Tenn. 2004); Smith v. Smith, 984 S.W.2d 606, 609 (Tenn. Ct. App. 1997).
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As a general matter, reviewing courts will evaluate the fairness of a property division
by its final results. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990).
Further, “unless the court’s decision is contrary to the preponderance of the evidence or is
based on an error of law, we will not interfere with the decision on appeal.” Sullivan v.
Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002)(citing Goodman v. Goodman, 8
S.W.3d 289, 298 (Tenn. Ct. App. 1999)). Thus, appellate courts ordinarily defer to the trial
court’s decision unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c)
or is not supported by a preponderance of the evidence. Jolly v. Jolly, 130 S.W.3d at 785-86;
Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998).
B. Husband’s Property Arguments
Husband acknowledged during oral argument that he no longer relies upon the
argument he raised at trial that the marital home at Vincion Road should be considered his
separate property because of his contribution to its acquisition. He therefore implicitly
concedes that the proceeds derived from the Bakers Grove Road property became marital
property.
Husband argues, nonetheless, that he is entitled to a larger share of the equity in the
Vincion Road property than the court awarded him. He asserts that only one of the factors
set out in Tenn. Code Ann. § 36-4-121(c), “the duration of the marriage,” favors an equal
division of the marital assets, while the other relevant factors suggest otherwise, including
factor (7), “[t]he estate of each party at the time of the marriage.”
We note that the parties’ pre-marital assets are an especially important factor when
a marriage is one of short duration. The reason is that under that circumstance, the court will
attempt to divide the marital property in such a way as to restore the parties to the position
they would have been in if the marriage had never occurred. Powell v. Powell, 124 S.W.3d
100, 107 (Tenn. Ct. App. 2003)(citing Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct.
App. 1988)). When the marriage is one of long duration, however, the pre-marital assets
assume far less importance.
One factor that retains a great deal of importance regardless of the duration of the
marriage is factor (5):
The contribution of each party to the acquisition, preservation, appreciation or
dissipation of the marital or separate property, including the contribution of a
party to the marriage as homemaker, wage earner or parent, with the contribution of a party
as homemaker or wage earner to be given the same weight if each party has fulfilled his or
her role.
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Husband insists that because of his financial contribution to the acquisition of the
Vincion Road property, this factor strongly supports his claim to a larger share of the marital
estate. He asserts that he contributed at least $500,000 of his separate assets to the
acquisition of the property, while Wife’s own direct financial contribution was negligible or
non-existent. He further insists that during the course of the marriage, he earned $1,056,422
from his job, or 85% of the total income earned by the parties during the marriage, while
Wife’s earnings of $180,904 amounted to only 15% and that she contributed only a minimal
amount in income to the marriage.
Although the court is required to order an equitable division of marital property, it is
well-established that an equitable division is not necessarily an equal division. Larsen-Ball
v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010); Robertson v. Robertson, 76 S.W.3d 337, 341
(Tenn. 2002); Smith v. Smith, 984 S.W.2d at 609. Husband argues that, conversely, an equal
division is not necessarily an equitable division, and he urges this court to rule that in light
of his contributions to the marriage, it would be most equitable to award him 85% of the
marital assets.
Husband directs our attention to two cases involving marriages of long duration in
which the greater financial contribution to the marital estate by one of the parties resulted in
a correspondingly greater award of the marital assets to that party. However, both those
cases can easily be distinguished on their facts from the present one. In Larsen-Ball v. Ball,
301 S.W.3d 228 (Tenn. 2010), the trial court awarded the husband sixty percent of an almost
$30 million marital estate after an eighteen year marriage, and awarded the wife forty
percent. This court affirmed that award.
Both parties appealed, and our Supreme Court agreed to hear that appeal.5 The Court
discussed the respective roles of the parties in the accumulation of the marital estate, noting
that it was almost entirely derived from the husband’s law practice, that the husband had a
thriving law practice at the time the parties married, and that the wife had virtually no assets
at that time. The Court found that the wife, a stay-at-home mother, was capable of earning
at most $35,000 per year, but it agreed with the trial court’s assessment that the wife’s role
as homemaker gave the husband the “liberty and opportunity to pursue and acquire this
substantial estate.” Larsen-Ball v. Ball, 301 S.W.3d at 235. The Court affirmed the division
of the marital estate, because it simply found that such a division “would be well within [the
5
The Supreme Court agreed to hear Larsen-Ball v. Ball for the purpose of deciding whether the trial
court was correct to determine that a $17 million attorney fee received by the husband after the wife filed
her complaint for divorce but before the final divorce hearing was conducted should be considered marital
property rather than the husband’s separate property. The Supreme Court affirmed, holding that a proper
understanding of Tenn. Code Ann. § 36-4-121(b)(1)(A) requires that the fee be considered marital property.
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trial court’s] wide range of discretion in light of the multimillion dollar value of the marital
property in this case.” Larsen-Ball v. Ball, 301 S.W.3d at 236.
In the case of McKee v. McKee, No. M2009-01502-COA-R3-CV, 2010 WL 3245246(Tenn. Ct. App. Aug. 17, 2010) (no Tenn. R. App. P. 11 application filed), the trial court
granted the wife a divorce after a marriage of 26 years, and awarded her 75% of the marital
assets upon a finding that her contribution to the acquisition and preservation of those assets
far exceeded the husband’s contribution. This court affirmed.
The wife in that case was a dentist whose education was funded solely by her parents.
She had built up a valuable practice and she earned significantly more than her husband, who
worked as a loan officer at a bank. She contributed her pre-marital savings to the purchase
of the marital home, and thereafter used the income from her practice to pay the mortgage
and the insurance, and to construct a substantial addition onto the home. The wife also used
her own funds to purchase a vacation home, which the husband moved into after the parties
separated. The wife continued to pay the mortgage and insurance on the property, while the
husband paid the utility bills, mowed the lawn, and changed light bulbs.
Significantly, the wife testified that aside from being the primary wage-earner, she
was also the homemaker and the primary caregiver for the parties’ two children. She hired
a nanny for the children, but she asserted that she did the cooking, cleaning, laundry and
gardening as well as caring for the children when the nanny was not on duty. According to
the wife’s testimony, the husband turned down the opportunity to stay at home with the
children when they were first born, and he had very little involvement in raising them after
they got older. McKee v. McKee, 2010 WL 3245246 at *9. Thus, the evidence showed that
the wife’s contribution to the marital assets as both wage earner and homemaker was far
greater than the husband’s, thereby making it equitable for her to receive the far greater share
of those assets.
In both Larsen-Ball v. Ball and McKee v. McKee, specific evidence was presented
about the respective roles of the parties as homemakers or parents. In the present case, by
contrast, there was virtually no evidence as to either party’s involvement in the duties
normally associated with homemaking or parenting. In the absence of such evidence,
Husband urges us to base our judgment solely upon the fact that his financial contribution
to the marriage was greater than Wife’s.
Despite the paucity of the evidence, someone must have performed the homemaking
and parenting functions. There were some indications in the record that the parties held
different attitudes about the non-financial aspects of their marriage, from which the court
may have inferred that Wife’s contributions in those areas equaled or balanced Husband’s
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financial contributions. As we noted above, the parties maintained separate checking
accounts during the marriage. Husband used his account for house, utility, tax and insurance
payments. Wife used hers for food, clothing, medical care and the needs of the children.
Wife responded to a question at trial about a conversation with Husband in which he
explained his approach to marital finances:
A. At the end of our marriage, right before we separated, he told me that
our finances had always been by his design and that he designed it so
that he paid for the things that were important and the things that would
reflect back onto the property, and that I spent my money on things that
really didn’t matter, and that I was too stupid to see it.
Q. Do you think your children didn’t really matter?
A. I thought they mattered.
Q. That’s where your money went, isn’t it?
A. Yes.
Husband did not attempt to refute Wife’s account of this conversation.
The trial court based its equal division of the marital estate “on the length of the
marriage and the contributions that each party made during the course of the marriage.” The
evidence as to Wife’s non-monetary contributions is admittedly thin, but in light of the entire
record of this case, the evidence does not preponderate against the trial court’s implied
finding as to Wife’s contribution to the acquisition, preservation and appreciation of the
marital property. And even though the evidence may have also supported a slightly different
result, an equal division of the marital assets remained within the range of discretion that the
trial court was entitled to exercise in this case. See Larsen-Ball v. Ball, 301 S.W.3d at 236.
C. Alimony
Our legislature has established a set of statutory factors to assist the courts in
determining whether an award of alimony is appropriate, and if so, the nature, amount and
manner of payment. Tenn. Code Ann. § 36-5-121(i). The factors are quite similar to those
that the courts are directed to use when dividing marital property, except that, unlike in the
division of marital property, they may consider the relative fault of the parties as a factor
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when dealing with alimony.6 As there were no findings of fault in this case, that factor is not
relevant to our discussion.
Our courts have consistently summed up the legislative directive by stating that the
most important factors to consider in determining spousal support are the needs of the
disadvantaged spouse and the obligor spouse’s ability to pay. Anderton v. Anderton, 988
S.W.2d 675, 683 (Tenn. Ct. App. 1998); Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct.
App. 1996); Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct. App. 1984). Husband
argues that these two factors weigh heavily in favor of an award of alimony award to him,
and he argues that under the circumstances, the court should have ordered Wife to pay him
$500 per month as alimony in futuro.
An award of alimony is within the discretion of the trial court in view of the particular
circumstances of each case. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Houghland
v. Houghland, 844 S.W.2d 619, 621 (Tenn. Ct. App. 1992). The appellate courts are
reluctant to second guess a trial court’s support decision and will do so only when the
decision is not supported by the evidence or is contrary to the spousal support statutes.
Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986); Lancaster v. Lancaster, 671
6
The statutory factors for an award of alimony are,
(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income
from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each party to secure such
education and training, and the necessity of a party to secure further education and training to improve such
party’s earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due
to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment outside the home, because
such party will be custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and intangible;
(8) The provisions made with regard to the marital property, as defined in §
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible contributions to the marriage as
monetary and homemaker contributions, and tangible and intangible contributions by a party to the education,
training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do
so; and
(12) Such other factors, including the tax consequences to each party, as are necessary to consider the
equities between the parties
Tenn.Code Ann. § 36-5-121(i).
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S.W.2d 501, 502 (Tenn. Ct. App. 1984).
The trial court admitted Wife’s monthly pay stub for February 2010 into the record.
The document shows gross income of $2,728.77, which includes compensation for 29.5
hours of overtime. Wife testified that her income was lower in the summer, when overtime
was usually not available. Deductions from that amount included federal income tax, FICA,
health and dental insurance, and totaled $816.38, leaving net income of $1,912.39. Wife’s
share of Husband’s UPS pension from the property division amounts to about $1,013,
increasing Wife’s income to about $2,925. Wife’s statement of recurring monthly expenses
was also entered into the record. It includes $850 for rent and shows total expenses of
$2,996, almost exactly matching her net income.
Husband’s income is derived from two sources. His Social Security disability check
amounts to $2,010 per month. His UPS pension is $3,040 per month. Subtracting Wife’s
share from his pension leaves $2,027, resulting in total net income of $4,037 per month for
Husband, about $1,000 more than Wife receives. His statement of expenses, which includes
a $625 entry for income tax, shows total monthly expenses of $3,857 per month, very close
to the amount of his income.
Husband argues that despite the close matches between current income and current
expenses for both parties, two expected developments will increase both Wife’s ability to pay
and his need for additional income. As we noted above, Wife testified that she was preparing
to take a certification test at the time of trial, and that success on that test might result in a
9% pay increase for her. As Wife’s attorney points out, however, it is not at all certain that
Wife will be successful, and even if is, the additional income will not give her the ability to
pay $500 per month in alimony.
Husband states that he was receiving his health insurance through Wife’s employment
at the time of trial, and that because of his medical condition, he will not be able to obtain
private health insurance. Husband is, however, eligible to obtain COBRA insurance for an
additional eighteen months by virtue of Wife’s employment. The record contains a
memorandum on state health insurance premiums, which indicates that Husband’s cost for
maintaining his same insurance under COBRA would be $774 per month. Husband testified
that as an alternative, “if I go with Medicare, it is going to be around a thousand a month for
my prescriptions and medical.” Husband’s expense statement recites prescription expenses
of $650 per month, which includes his parenteral nutrition. It is unclear whether Husband
included those expenses in his estimate of the cost of Medicare.
In any case, we do not dispute that as a result of divorce, Husband will have to pay
additional medical insurance costs, and it seems highly likely that as a result his standard of
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living will decline. We sympathize with Husband in this situation, for we are aware that he
is continuing to endure a difficult medical challenge. “It is an unfortunate reality of divorce
that two households are more expensive to maintain than one, and, therefore, it is not always
possible for the ex-spouses to enjoy the same standard of living following a divorce as they
did when they were married.” Anzalone v. Anzalone, E2006-01885-COA-R3CV, 2007 WL
3171132 (Tenn. Ct. App. Oct. 30, 2007) (no Tenn. R. App. P. 11 application filed)(no Tenn.
R. App. P. 11 application filed); see also Williams v. Williams, E2000-02782-COA-R3-CV,
2001 WL 766994 (Tenn. Ct. App. July 10, 2001) (no Tenn. R. App. P. 11 application filed);
Hausmann v. Hausmann, 01A-01-9702-CH-00092, 1997 WL 672649 (Tenn. Ct. App. Oct.
29, 1997).
Fortunately for Husband, the property division leaves him with an asset that can help
him meet his needs. The trial court determined that the marital home is worth $575,000. If
jklhit is sold, then each party would probably receive over $250,000 in cash, even after the
costs of the sale are deducted. Husband’s expense statement shows that he is not currently
paying rent, and of course he will have to find another place to live if he sells the home. But
his expense statement recites expenditures of $300 per month on lawn care, $362 in utility
expenses (electric, water and propane), $226 in property taxes, and $91 in homeowners
insurance. The elimination or reduction of those expenses should defray much, if not all,
the costs of a rental.7
In sum, our analysis of Husband’s needs and Wife’s ability to pay show that the trial
court did not abuse its discretion in declining to award alimony to either party. We
accordingly affirm the judgment of the trial court
IV.
The judgment of the trial court is affirmed. We remand this case to the Chancery
Court of Rutherford County for any further proceeding necessary. Tax the costs on appeal
to the appellant, Richard Michael Schroer.
_________________________________
PATRICIA J. COTTRELL, JUDGE
7
Husband’s expense statement also includes the cost of both Comcast and Direct TV, ADT Security,
Car insurance of $275 per month, a Fairfield Glade property fee, and telephone expenses of $139 per month.
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