Turner v. Turner ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
March 27, 1997
GINGER DIANNE GRIGGS TURNER, )
) Cecil W. Crowson
Plaintiff/Appellee, ) Appellate Court Clerk
) Davidson Circuit
) No. 91D-1377
VS. )
) Appeal No.
) 01A01-9506-CV-00255
ROBERT PHILLIPS TURNER, JR., )
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MARIETTA M. SHIPLEY, JUDGE
For the Plaintiff/Appellee: For the Defendant/Appellant:
Kathryn G. Brinton David S. Zinn
Nashville, Tennessee Michael D. Dillon
ZINN AND ASSOCIATES
Philip E. Smith Nashville, Tennessee
Nashville, Tennessee
AFFIRMED AS MODIFIED
AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the dissolution of an eleven-year marriage. The wife
first filed a complaint for separate maintenance in the Circuit Court for Davidson
County but later amended the complaint to seek a divorce. The husband contested
the wife’s right to the divorce and to custody of the children and sought an
equitable division of the marital estate. The trial court awarded the wife a divorce
on the ground of inappropriate marital conduct and granted her custody of the
children. On this appeal, the husband takes issue with various aspects of the
division of the marital estate, the provisions for custody and visitation, the awards
for spousal and child support, his conviction for criminal contempt, and the
awards for the wife’s attorney’s fees and discretionary costs. We affirm the trial
court’s judgments in all particulars except for the constraints placed on the
husband’s dealings with his disability insurance carrier, the disposition of seventy
boxes of the husband’s personal property, and the award for the wife’s unpaid
attorney’s fees.
I.
Ginger Dianne Turner and Robert P. Turner, Jr. were married in Nashville
on February 29, 1980. Mr. Turner was a practicing trial lawyer and Ms. Turner
was a college graduate who had worked for several Nashville companies. After
the marriage, Ms. Turner worked in Mr. Turner’s law office until their first child
was born in June 1985. Their second child was born in February 1988.
The marriage was troubled from the beginning. Ms. Turner left Mr. Turner
for three brief periods during the marriage. Eventually, on April 5, 1991, Ms.
Turner and the children left home and moved into a domestic violence shelter.
One week later, Ms. Turner filed a complaint for separate maintenance and also
sought and obtained a temporary restraining order to prevent Mr. Turner from
harassing or threatening her or interfering with her custody of the children. Mr.
Turner was hospitalized in a South Dakota facility where he was treated for severe
depression and other problems. The parties attempted to reconcile after Mr.
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Turner returned to Nashville, but five weeks later, Ms. Turner and the children
moved into a one-bedroom apartment attached to her parents’ home in Gallatin
where they have lived ever since.
The litigation was drawn out and difficult with the most serious disputes
centering on the custody of the children and the division of the marital property.
The parties traded contempt petitions, and in September 1992, Ms. Turner filed
an amended complaint requesting a divorce rather than separate maintenance. Mr.
Turner was treated for work addiction and depression in Arizona in mid-1992. By
late 1992, Mr. and Ms. Turner and their children were in therapy. In an
extraordinary letter written to Mr. and Ms. Turner and their lawyers on October
2, 1992, the family’s three therapists noted that the “present situation has many
of the hallmarks of the murder-suicide syndrome” and strongly recommended that
Mr. and Ms. Turner should “appear in each other’s presence only when there are
others present to buffer the intensity of your present feelings.” They also
recommended that Mr. and Ms. Turner seek the services of a divorce mediator
“for the sake of your children.”1
In April 1993, Mr. Turner’s attending physician certified that Mr. Turner
was disabled from practicing as a trial lawyer because of his obsessive-compulsive
personality and his predisposition toward depression. Accordingly, in July 1993
Mr. Turner’s disability insurance carrier began paying him disability benefits
amounting to approximately $12,000 per month. Mr. Turner’s efforts since 1993
to establish an office practice have been unsuccessful.
The trial court held a hearing on December 20 and 21, 1993, concerning
fault, custody and visitation, and child support. On December 23, 1993, it filed
a memorandum opinion awarding Ms. Turner a divorce on the ground of
inappropriate marital conduct. Noting that the “children need a safe haven where
they are out of the battlefield,” the trial court gave Ms. Turner sole custody of the
children and defined a specific visitation schedule for Mr. Turner. Instead of
finally deciding the issues of spousal and child support, the trial court entered an
1
Mr. Turner later sued the three therapists for defamation and malpractice but voluntarily
dismissed the suit seven days after it was filed.
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order for temporary support, directing Mr. Turner to pay Ms. Turner $3,500 per
month for alimony and child support and permitting Ms. Turner to withdraw
approximately $28,500 from Mr. Turner’s cash account. An order embodying
these decisions was filed on January 18, 1994.
Ms. Turner filed a petition to hold Mr. Turner in criminal contempt in
March 1994 because he had refused to pay the $3,500 in monthly spousal and
child support required by the January 18, 1994 order. Following a hearing in
April 1994, the trial court found Mr. Turner guilty of criminal contempt and gave
him the choice of serving ten days in jail or performing 240 hours of community
service work. Mr. Turner opted for the community service work and completed
his obligation in July 1994 by working at a YMCA.
The trial court held further evidentiary hearings on August 4 and September
23, 1994, concerning the remaining issues in the case. In an order filed on
October 5, 1994, the trial court determined the marital home on Nichol Lane was
Mr. Turner’s separate property but that the increase in the equity of the home
during the marriage was part of the marital estate. The trial court also (1) awarded
Ms. Turner approximately 40% of the marital estate worth between $729,335 and
$767,620;2 (2) directed Mr. Turner to pay $2,000 in monthly child support and to
pay an additional $1,500 per month into an educational trust fund for the children;
and (3) awarded Ms. Turner an additional $28,565 for her attorneys’ fees3 and
$8,938.75 in discretionary costs.
The trial court also provided Ms. Turner with two types of spousal support.
First, it ordered Mr. Turner to pay Ms. Turner rehabilitative alimony in the amount
of $1,500 per month for not less than two nor more than three years in order to
enable Ms. Turner to obtain a graduate degree. Second, it awarded Ms. Turner her
2
The value of Ms. Turner’s share of the marital estate was approximately $299, 450;
while the value of Mr. Turner’s share was between $429,885 and $468,170. By a later order,
Ms. Turner received a 1985 Jeep Wagoneer, and Mr. Turner received a 1992 Jeep Wrangler and
a 1980 BMW.
3
Ms. Turner actually received $42,565 in legal fees; however, $14,000 was disbursed
while the divorce proceeding was pending. The trial court directed that $27,464.31 of the
$28,565 awarded be paid using the funds already on deposit with the court.
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former husband’s interest in the Nichol Lane house as alimony in solido. The trial
court also gave Mr. Turner the option to purchase the house for $185,000.
As a final matter, the trial court directed Mr. Turner to submit a copy of his
disability insurance policy and enjoined him from informing his disability carrier
that he intended to resume working as a litigator until he actually established a
trial practice. The trial court also directed Mr. Turner to provide his lawyer with
copies of any responses to the disability carrier’s inquiries regarding his future
career plans and ordered Mr. Turner’s lawyer to seek court approval of the
response “if necessary.”
II.
CUSTODY AND VISITATION
Mr. Turner takes issue with the trial court’s decision to award Ms. Turner
custody of their nine and eleven-year-old daughters and to circumscribe his
visitation rights more than they had been prior to the custody phase of the trial.
He asserts that he is comparatively more fit than Ms. Turner to be the children’s
custodian and that his limited visitation will interfere with the normal growth of
his relationships with his children. The evidence in the record does not compel
us to second-guess the trial court’s decision.
A.
Custody and visitation matters are among the most important issues
confronting trial courts in divorce cases. Gaskill v. Gaskill, 936 S.W.2d 626, 630
(Tenn. Ct. App. 1996). The needs and interests of the children are paramount;
while the needs of the parents are secondary. Lentz v. Lentz, 717 S.W.2d 876,
877 (Tenn. 1986); Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992).
Thus, custody decisions are not intended either to punish or to reward the parents,
Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995), but rather to
promote the children’s interests by placing them in the environment best suited
to their physical and emotional needs. Luke v. Luke, 651 S.W.2d 219, 221 (Tenn.
1983); Gaskill v. Gaskill, 936 S.W.2d at 630.
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As a general rule, the most preferable custody arrangement is one that
fosters the children’s relationships with both the custodial and non-custodial
parent. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988); Pizzillo v. Pizzillo, 884
S.W.2d 749, 755 (Tenn. Ct. App. 1994). Thus, trial courts should strive to devise
custody and visitation arrangements that interfere as little as possible with each
parent’s relationship with the children. Taylor v. Taylor, 849 S.W.2d 319, 331
(Tenn. 1993); Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. Ct. App. 1993).
The courts do not employ hard and fast rules to identify the children’s best
interests in a particular case. Taylor v. Taylor, 849 S.W.2d at 327. The inquiry
is factually driven and requires the courts to weigh numerous considerations.
Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d
at 112. These considerations include, but are not limited to
the age, habits, mental and emotional make-up of the
child and the parties competing for custody; the
education and experience of those seeking to raise the
child; their character and propensities as evidenced by
their past conduct; the financial and physical
circumstances available in the home of each party
seeking custody and the special requirements of the
child; the availability of third-party support; the
associations and influences to which the child is likely
to be exposed in the alternatives afforded, both positive
and negative; and where is the greater likelihood of an
environment for the child of love, warmth, stability,
support, consistency, care and concern, and physical
and spiritual nurture.
Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. Ct. App. 1983); Tenn. Code Ann. § 36-6-
106 (1996). The trial courts employ the comparative fitness analysis to weigh
these considerations and, by so doing, determine which of the available custodians
is comparatively more fit than the other. In re Parsons, 914 S.W.2d 889, 893
(Tenn. Ct. App. 1995); Bah v. Bah, 668 S.W.2d at 666.
Parents competing for custody are human beings with their own unique
virtues and vices. Gaskill v. Gaskill, 936 S.W.2d at 630. Thus, custody and
visitation decisions are rarely black and white matters. Because these decisions
usually hinge on subtle nuances of the parents’ demeanor and credibility, the
appellate courts are reluctant to second-guess trial judges who have observed the
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witnesses directly. Scarbrough v. Scarbrough, 752 S.W.2d 94, 96 (Tenn. Ct. App.
1988). Accordingly, we review custody and visitation decisions de novo on the
record with a presumption that the trial court’s findings of fact are correct unless
the evidence preponderates otherwise. Nichols v. Nichols, 792 S.W.2d 713, 716
(Tenn. 1990); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Tenn. R.
App. P. 13(d).
B.
CUSTODY OF THE CHILDREN
The parties’ two daughters have been living with Ms. Turner since the final
separation in July 1991. They appear to be doing remarkably well even though
they have been at the center of what Mr. Turner’s former lawyer referred to as a
“war of the experts.” Both children have been in therapy intermittently since their
parents separated. The trial court itself noted at one point that it was “greatly
saddened that these children have been so picked at and scrutinized by so many
experts.”
Mr. Turner asserts that he is comparatively more fit to be the children’s
custodian because he continues to live in the marital home and because he is in a
position to spend more time with them due to the fact that he is not working. He
also insists that the trial court did not give sufficient weight to the opinion of a
child psychiatrist who has treated the children but rather was retained to give
testimony in the case. This psychiatrist testified that the children should live with
their father because Ms. Turner has difficulty setting limits on their behavior.
The expert opinions of therapists who have examined members of a family
experiencing the trauma of a divorce can be of great assistance to the courts in
determining which parent should be given custody of the children. These
opinions, however, cannot supplant the reasoned judgment and discretion of the
trial court or of this court. Jones v. Jones, 01A01-9601-CV-00038, 1996 WL
512030, at *2 (Tenn. Ct. App. Sept. 11, 1996) (No Tenn. R. App. P. 11 application
filed); Starnes v. Starnes, App. No. 01A01-9010-CV-00373, 1991 WL 27360, at
*3 (Tenn. Ct. App. Mar. 6, 1991) (No Tenn. R. App. P. 11 application filed).
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Based on our independent review of the record, we cannot say that the proof
fails to support the trial court’s decision to place these two children with Ms.
Turner. Their mother has been their primary care-giver throughout their lives, and
they have been living with her since the parties’ separation in mid-1991. While
Mr. Turner has been quick to point out Ms. Turner’s shortcomings as a parent, we
do not expect Ms. Turner to be perfect. She has attempted to provide the children
with love, support, and care during this extremely trying period in their lives and
by all appearances has performed satisfactorily. Accordingly , we affirm the trial
court’s decision awarding Ms. Turner sole custody of the children.
C.
MR. TURNER’S VISITATION RIGHTS
Mr. Turner also insists that the trial court has impermissibly interfered with
his relationship with his daughters by awarding him less visitation than he was
permitted prior to the December 1993 hearing. We have determined that Mr.
Turner’s conduct warranted the changes in his visitation rights.
The trial court originally granted Mr. Turner extemely liberal temporary
visitation rights, including one day each weekend, one mid-week overnight
visitation each week, and six weeks of visitation during the summer. In its
December 23, 1993 order, the trial court eliminated the mid-week visitation and
reduced Mr. Turner’s summer visitation from six to three weeks. The trial court
continued Mr. Turner’s regular weekend visitation, made appropriate allowances
for the Christmas and Thanksgiving holidays, and provided a schedule for other
major three-day weekends. Finally, the trial court permitted Mr. Turner two
meetings each year with the children’s teachers and directed him to “schedule any
athletic, art and church events during his visitation time.”
The trial court made these changes in Mr. Turner’s visitation because it
determined that “[a]ll these parties need some recovery time” and that the
“children need to recover from their parents’ controversy, if that is at all possible.”
The proof of Mr. Turner’s aggressive involvement in the children’s lives
supported the trial court’s decision then and supports it now. Even though his
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visitation rights have been modified, the trial court has provided sufficient
opportunity for the development of a healthy relationship between Mr. Turner and
his daughters.
III.
MR. TURNER’S CHILD SUPPORT OBLIGATION
Mr. Turner asserts that the trial court mistakenly calculated his child
support obligation by failing to consider him as self-employed and by failing to
deduct his claimed business expenses from his disability insurance income. We
have determined that the trial court was not required to deduct business expenses
from the payments Mr. Turner was receiving from his disability insurance carrier.
A.
Child support issues are entrusted to the trial court’s discretion. Campanali
v. Campanali, 695 S.W.2d 193, 196 (Tenn. Ct. App. 1985). This discretion is now
circumscribed by the child support guidelines promulgated by the Tennessee
Department of Human Services pursuant to Tenn. Code Ann. § 36-5-101(e)(2)
(1996). These guidelines assist the courts by providing them with rebuttable
presumptions with regard to the proper amount of child support based on the
payor spouse’s income and the number of children to be supported. Carden v.
Carden, App. No. 01A01-9502-CH-00042, 1995 WL 689728, at *4 (Tenn. Ct.
App. Nov. 22, 1995) (No Tenn. R. App. P. 11 application filed); Tenn. Code Ann.
§ 36-5-101(e)(1); Tenn. Comp. R. & Regs. r. 1240-2-4-.02(7) (1994). We review
child support decisions in accordance with Tenn. R. App. P. 13(d), giving the trial
court’s factual findings, but not its interpretation of the guidelines, a presumption
of correctness. Lumpkins v. Lumpkins, App. No. 01A01-9401-CH-00034, 1995
WL 581417, at *2 (Tenn. Ct. App. Oct. 4, 1995) (No Tenn. R. App. P. 11
application filed).
The guidelines have simplified setting child support by providing formulas
for determining child support and by limiting the number of variables in the
formula. Kirchner v. Pritchett, App. No. 01A01-9503-JV-00092, 1995 WL
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714279, at *2 (Tenn. Ct. App. Dec. 6, 1995) (No Tenn. R. App. P. 11 application
filed). Since the number of children to be supported is usually evident and
undisputed, the most frequently contested variable in the formula is the non-
custodial parent’s income. Turner v. Turner, 919 S.W.2d at 344. In the case of
highly compensated individuals, the guidelines permit the courts to consider all
the non-custodial parent’s income. Nash v. Mulle, 846 S.W.2d 803, 806 (Tenn.
1993).
B.
Mr. Turner’s litigation practice was once highly successful, but it declined
precipitously immediately before the parties separation in 1991. His business
income in 1987 and 1988 was $185,872 and $249,654 respectively. In 1989, Mr.
Turner’s business income slipped to $35,647, and by 1990, his expenses exceeded
his receipts by $27,091. After being declared disabled to practice as a litigator in
April 1993, Mr. Turner began receiving approximately $12,000 per month in
disability benefits from a disability insurance policy he had purchased years
before. Mr. Turner kept his office after he was declared disabled but essentially
has performed no legal work and has received virtually no income from practicing
law since 1991.
The trial court properly determined that Mr. Turner’s disability benefits
should be treated as gross income for the purposes of the child support guidelines.
While these benefits are not specifically included in the definition of “gross
income” in Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(a) (1994), they are similar
to other types of disability income that are specifically included. See Gonsalves
v. Roberts, 905 S.W.2d 931, 932 (Tenn. 1995) (treating a temporary total
worker’s compensation disability award as income); Tenn. Comp. R. & Regs. r.
1240-2-4-.03(3)(a) (defining “gross income” to include Title II Social Security
Benefits).
Mr. Turner does not directly dispute the characterization of his disability
insurance benefits as gross income but insists that his benefits should be
considered as “income from self-employment.” The reason for this argument is
clear. If his disability insurance benefits were to be considered “income from self-
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employment,” Mr. Turner would be able to reduce the amount of his gross income
by deducting his reasonable business expenses, and, by reducing the amount of his
gross income, he would be able to reduce the amount of his child support.
Mr. Turner’s argument contains two flaws. First, by its very definition,
“income from self-employment” includes “income from business operations,” and
disability insurance benefits are not income from the insured’s business
operations. Second, the guidelines permit the deduction of “reasonable expenses
necessary to produce such income” from a payor spouse’s self-employment
income. As the trial court pointed out, Mr. Turner was not required to expend any
of his claimed monthly business expenses to obtain his disability insurance
benefits. Thus, these claimed expenses were not reasonable expenses necessary
to produce Mr. Turner’s disability insurance benefits.
The trial court correctly treated all of Mr. Turner’s disability insurance
benefits as gross income for the purpose of setting his child support. Based on
Mr. Turner’s gross income and on the guidelines’ requirement that he pay 32% of
his gross income as child support, we conclude that the trial court acted
appropriately when it ordered Mr. Turner to pay $2,000 in monthly child support
and to deposit $1,500 each month in an educational trust fund for the children’s
benefit. The trial court also included proper safeguards permitting the
modification of either or both of these amounts in light of the uncertain future of
Mr. Turner’s disability insurance benefits.
IV.
THE DIVISION OF MARITAL PROPERTY
Mr. Turner also disputes two aspects of the trial court’s division of the
marital property. He asserts that the trial court should not have awarded Ms.
Turner the appreciation in value of the Nichol Lane house and that the trial court
should have awarded him approximately seventy boxes of personal property being
stored at Central Van and Storage. We have determined that the appreciation in
the value of the Nichol Lane house was marital property and that the trial court
acted equitably by awarding it to Ms. Turner. We have also determined, however,
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that the trial court should have awarded the seventy boxes stored at Central Van
and Storage to Mr. Turner.
A.
Dividing a marital estate necessarily begins with the classification of the
property as either separate or marital property. McClellan v. McClellan, 873
S.W.2d 350, 351 (Tenn. Ct. App. 1993). The definitions of “separate property”
and “marital property” in Tenn. Code Ann. § 36-4-121(b) (1996) provide the
ground rules for the task. Once the property has been classified, the trial court’s
goal is to divide the marital property in an essentially equitable manner. A
division is not rendered inequitable simply because it is not precisely equal, Ellis
v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988); Batson v. Batson, 769 S.W.2d 849,
859 (Tenn. Ct. App. 1988), or because each party did not receive a share of every
piece of marital property. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App.
1994).
Dividing a marital estate is not a mechanical process but rather is guided by
considering the factors in Tenn. Code Ann. § 36-4-121(c) (1996). Trial courts
have wide latitude in fashioning an equitable division of marital property. Fisher
v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Brown v. Brown, 913 S.W.2d at
168. Appellate courts accord great weight to a trial court’s division of marital
property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996); Edwards
v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Thus, we will 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.
Brown v. Brown, 913 S.W.2d at 168; Mahaffey v. Mahaffey, 775 S.W.2d 618, 622
(Tenn. Ct. App. 1989); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App.
1983).
B.
THE NICHOL LANE HOUSE
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Mr. Turner’s assertion that the trial court erred by classifying the
appreciation in value of the Nichol Lane house as marital property rests on the
title to the property and his insistence that Ms. Turner gave him her interest in the
house in 1984. He claims that the trial court should have classified the entire
property as separate property because the title was in his name alone when the
parties separated in 1991. We find little merit in these arguments.
Mr. Turner acquired the Nichol Lane house in 1975 before he met Ms.
Turner. He conveyed the property to his parents in 1976, but they conveyed it
back to him in 1980 when he and Ms. Turner were married. He again conveyed
the property to his parents in July 1983 during one of the parties’ marital
altercations, but his parents reconveyed to him and Ms. Turner three months later.
The fact that Ms. Turner’s name was on the deed apparently upset Mr. Turner, and
he accused Ms. Turner of reconciling with him solely to obtain possession of the
house. In order to reduce the stress on the marriage, Ms. Turner quitclaimed her
interest in the house to Mr. Turner in June 1984.
The classification of property as separate or marital under Tenn. Code Ann.
§ 36-4-121 depends largely on the manner in which the parties used the property
during the marriage, Mahaffey v. Mahaffey, 775 S.W.2d at 624, rather than on the
property’s record title. See Jones v. Jones, 597 S.W.2d 886, 887 (Tenn. 1979);
Langford v. Langford, 220 Tenn. 600, 604, 421 S.W.2d 632, 634 (1967);
Robinette v. Robinette, 726 S.W.2d 524, 525 (Tenn. Ct. App. 1986).
While there is no question that the Nichol Lane house was in Mr. Turner’s
name at the time of the divorce, there is likewise no question that the parties used
this house as their marital home since 1980. Even if Mr. Turner’s efforts to keep
the title to the house in his own name would support a conclusion that the house
remained his separate property, Tenn. Code Ann. § 36-4-121(b)(1)(B) provides
that the increase in value during the marriage of separate property will be
considered marital property if each party contributed substantially to its
preservation and appreciation. Substantial contributions include a spouse’s non-
monetary contributions as a parent and homemaker. Tenn. Code Ann. § 36-3-
121(b)(1)(C). Accordingly, the trial court had ample legal and factual basis for
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classifying the appreciation in the value of the Nichol Lane house as marital
property.
C.
THE BOXES OF PERSONAL PROPERTY
The parties vigorously contested the distribution of several items of
furniture and approximately seventy boxes of clothes and fishing and boating
equipment that had been stored at Central Van and Storage. Mr. Turner asserted
that he had sold the furniture to a longtime friend for $3,500 to raise money during
the divorce proceedings. Ms. Turner responded that Mr. Turner and his friend had
contrived this story to cheat her out of $8,500 worth of furniture, and the record
contains some evidence to support her assertion. The trial court awarded the
property in storage to Ms. Turner.
Mr. Turner now insists that the property remaining in storage consists of
clothes, personal effects, and fishing and boating equipment having little value to
Ms. Turner. While she does not contest Mr. Turner’s characterization of the
property, Ms. Turner insists that Mr. Turner should not receive this property
because he attempted to perpetrate a fraud on both her and the trial court. Fault
is not a consideration in the division of property, Tenn. Code Ann. § 36-4-
121(a)(1), and the court had other means at its disposal to address Mr. Turner’s
conduct during the divorce proceedings. Accordingly, we have determined that
the trial court should have awarded the seventy boxes in storage at Central Van
and Storage to Mr. Turner.
V.
MR. TURNER’S SPOUSAL SUPPORT OBLIGATIONS
Mr. Turner is dissatisfied with all three aspects of the award for spousal
support. He asserts that the trial court erred by awarding Ms. Turner his interest
in the Nichol Lane house as alimony in solido, that Ms. Turner did not need
rehabilitative alimony, and that Ms. Turner was not entitled to an award for her
legal expenses because she had received enough liquid assets to be able to defray
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her legal expenses herself. While the trial court did not err in awarding Ms.
Turner alimony in solido and rehabilitative alimony, we have determined that the
award for attorney’s fees should be modified.
A.
There are no hard and fast rules for determining when a person should be
required to support a former spouse. Crain v. Crain, 925 S.W.2d 232, 233 (Tenn.
Ct. App. 1996); Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989).
These decisions depend on the unique facts of each case and on the thoughtful
balancing of many factors, including those identified in Tenn. Code Ann. § 36-5-
101(d)(1). Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn. Ct. App. 1994);
Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). While courts may
consider fault in this context, spousal support awards are not intended to be
punitive. Brown v. Brown, 913 S.W.2d at 169; McClung v. McClung, 29 Tenn.
App. 580, 584, 198 S.W.2d 820, 822 (1946).
Trial courts have broad discretion in determining whether to award spousal
support, as well as the nature, duration, and amount of the award. Wilson v.
Moore, 929 S.W.2d at 375; Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn. Ct.
App. 1994). As a general matter, the appellate courts are disinclined to alter a trial
court’s decision regarding spousal support unless it is not supported by the
evidence or is inconsistent with the policies embodied in the applicable statutes.
Brown v. Brown, 913 S.W.2d at 169; Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn.
Ct. App. 1988).
The current support statutes reflect a preference for temporary,
rehabilitative support as opposed to long-term support. Wilson v. Moore, 929
S.W.2d at 375; Tenn. Code Ann. § 36-5-101(d)(1) (stating the legislative intent
that economically disadvantaged spouses should be rehabilitated whenever
possible). This preference does not, however, displace other traditional types of
spousal support. See Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995)
(awarding permanent alimony); Isbell v. Isbell, 816 S.W.2d 735, 739 (Tenn. 1991)
(authorizing long term support); Cranford v. Cranford, 772 S.W.2d at 51
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(awarding permanent alimony). Trial courts have the prerogative to determine
which type of support best fits the facts of each particular case and may, when
appropriate, award a spouse several different types of support.
B.
THE ALIMONY IN SOLIDO AWARD
The fair market value of the Nichol Lane house at the time of the divorce
was $187,000. The trial court found that the house’s value had increased by
$95,000 during the marriage and awarded this appreciation to Ms. Turner as
marital property. The trial court apparently found that the house was Mr. Turner’s
separate property but awarded its residual, pre-marriage value - $92,000 - to Ms.
Turner as alimony in solido. The trial court gave Mr. Turner the option of
conveying the house to Ms. Turner or purchasing it for $185,000. Mr. Turner
exercised the right to purchase the house by paying $185,000 into court.
Accordingly, Ms. Turner received $92,000 in cash as alimony in solido.
Mr. Turner objects to the amount of the alimony in solido award, although
his reasoning is somewhat convoluted. In his view, this award is unfair because
Ms. Turner has received over one-half of the value of the marital real property.
He reasons that the total value of the marital real property is $280,0004 and that
Ms. Turner is receiving more than her fair share of this property because she is
receiving $187,000. Apparently, Mr. Turner believes that the alimony in solido
award should be reduced by $45,000.
Mr. Turner’s argument is flawed in two significant ways. First, he
overlooks that the $187,000 awarded to Ms. Turner consisted of marital property
($95,000) and alimony in solido ($92,000). Second, he ignores the principle that
the distribution of marital property need not be equal to be equitable. Ellis v.
Ellis, 748 S.W.2d at 427; Batson v. Batson, 769 S.W.2d at 859. When viewed in
the context of the division of marital property, Ms. Turner received approximately
forty percent of the marital estate. This division was equitable. When viewed in
4
The fair market value of the Hillsboro Circle property was $185,000 and the value of
the appreciation in the value of the Nichol Lane house during the marriage was $95,000.
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the context of spousal support, the alimony in solido award was appropriate in
light of the duration of the marriage, the parties’ separate assets, the share of
marital assets each party received, the parties’ contributions to the marriage, and
the parties’ respective responsibility for the breakup of the marriage.
C.
THE REHABILITATIVE ALIMONY
Ms. Turner had returned to school to obtain a graduate degree in English by
the time of the divorce hearing. Even though Mr.Turner questioned Ms. Turner’s
motivation and the need for this degree, the trial court determined that Ms. Turner
would be entitled to $1,500 per month in rehabilitative support for not less than
two nor more than three years. The trial court conditioned this order on Ms.
Turner’s taking a particular number of courses and maintaining a certain grade
point average. Mr. Turner now insists that Ms. Turner does not need this
rehabilitative support in light of the marital property and alimony in solido she has
already received. Ms. Turner responds that this support is appropriate in light of
the parties’ pre-divorce standard of living.
One of the chief goals in every divorce case is to mitigate the economic
hardship that divorce causes to innocent spouses. As laudatory as this goal may
be in principle, it is generally difficult to achieve because both spouses usually
share the responsibility for the divorce and because, as an economic reality, it
costs more for two persons to live apart than it does for them to live together.
Seldom do divorcing parties have sufficient assets or income to enable one or both
spouses to maintain their pre-divorce standard of living. Thus, as a general rule,
our desire to shield an innocent spouse from the harsh economic realities of
divorce must give way to a reasoned application of the factors in Tenn. Code Ann.
§ 36-5-101(d)(1). Brown v. Brown, 913 S.W.2d at 169.
The most common factors influencing spousal support decisions are the
need of the spouse seeking support and the ability of the obligor spouse to pay.
Crain v. Crain, 925 S.W.2d at 234; Hawkins v. Hawkins, 883 S.W.2d at 625. In
the context of rehabilitative support, the trial court must consider the age and
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education of the spouse seeking support, the availability of training or education
that will enable the spouse to become more self-supporting, and the ability of the
spouse to acquire this additional training or education.
Ms. Turner is presently 43-years-old. She has a college degree and is in
good health. While she has been out of the workforce for a number of years, she
has a demonstrated ability to find gainful employment and has now decided to
enter the teaching profession. Obtaining an advanced degree will increase her
employability and will also enhance her potential earnings. Accordingly, the trial
court had ample basis to conclude that Ms. Turner’s decision to seek additional
education was reasonable. The trial court’s decision to require Mr. Turner to pay
for this education was also reasonable for two reasons. First, Mr. Turner is
financially able to pay for this education. Second, Ms. Turner’s opportunity to
accrue pension benefits will be impaired because of her late re-entry into the
workforce. She will need the assets received in the divorce to support herself after
she is no longer able to work. Accordingly, the trial court properly decided that
Ms. Turner should not be required to use the assets received in the divorce to
obtain her graduate degree.
D.
THE AWARD FOR ATTORNEY’S FEES
In addition to the $14,000 in pendente lite attorney’s fees, the trial court
awarded Ms. Turner another $28,565 to defray part of her attorney’s fees. Mr.
Turner takes issue with this award because Ms. Turner has received sufficient
other liquid assets which enable her to pay for her own legal expenses. We have
determined that the award for attorney’s fees should be further reduced.
The courts consider an award to defray all or part of the legal expenses
incurred in a divorce case as an additional support award. Gilliam v. Gilliam, 776
S.W.2d at 86; Raskind v. Raskind, 45 Tenn. App. 583, 601, 325 S.W.2d 617, 625
(1959). These awards are appropriate when an economically disadvantaged
spouse lacks funds to defray his or her legal expenses, Harwell v. Harwell, 612
S.W.2d 182, 185 (Tenn. Ct. App. 1980), but are inappropriate when the spouse
requesting the award is able to pay his or her own lawyer either from his or her
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own earnings or from the assets received in the divorce. Inman v. Inman, 811
S.W.2d 870, 874 (Tenn. 1991); McCarty v. McCarty, 863 S.W.2d 716, 722 (Tenn.
Ct. App. 1992).
Awards to help defray a party’s legal expenses in a divorce case are based
on need, not on conduct of the litigation. Other more appropriate sanctions are
available when a party abuses the litigation process. Tenn. R. Civ. P. 11, for
example, permits the recovery of legal expenses incurred in responding to
groundless pleadings and motions, and Tenn. R. Civ. P. 37 provides for monetary
sanctions for abuse of the discovery process. See Mansfield v. Mansfield, App.
No. 01A01-9412-CH-00058, 1995 WL 643329, at *5 (Tenn. Ct. App. Nov. 3,
1995) (No Tenn. R. App. P. 11 application filed). Ms. Turner did not pursue
either of these sanctions in this proceeding. Accordingly, her right to an
additional award to defray her legal expenses must be judged using the traditional
standards applicable to such awards.
The trial court awarded Ms. Turner over $200,000 in cash as a result of the
division of the marital property and alimony in solido. She should be able to earn
a comfortable living once she completes her graduate education and enters the job
market. Prudence and necessity will require Ms. Turner to allocate a great portion
of the funds obtained in the divorce to acquire suitable housing for herself and the
children and to make an adequate provision for her retirement. However, the
liquid assets she has received in this divorce and her anticipated earnings do not
leave her completely unable to pay her lawyers. Thus, we have determined that
Ms. Turner should be responsible for a portion of her legal expenses.
Mr. Turner is financially able to pay a portion of Ms. Turner’s attorney’s
fees. He has received valuable capital assets in the divorce and is receiving over
$12,000 per month in disability income. Based on Ms. Turner’s need and Mr.
Turner’s ability to pay, we have determined that Mr. Turner should pay Ms.
Turner an additional $16,000 to help her defray her legal expenses. Thus, on
remand, the portion of the trial court’s order awarding Ms. Turner $28,565 for
attorney’s fees should be reduced to $16,000.
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VI.
MR. TURNER’S CRIMINAL CONTEMPT CONVICTION
The trial court cited Mr. Tuner for criminal contempt in April 1994 because
of his willful failure to pay one monthly installment of the spousal and child
support required by its January 18, 1994 order. Mr. Turner now asserts that the
evidence preponderates against this finding. The standard for reviewing the
evidentiary support for a conviction for criminal contempt requires us to review
the record to determine whether the evidence is sufficient to support the finding
of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e); see also Gunn v.
Southern Bell Tel. & Tel. Co., 201 Tenn. 38, 42, 296 S.W.2d 843, 845 (1956);
Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). We have
determined that the evidence supports beyond a reasonable doubt the trial court’s
conclusion that Mr. Turner willfully violated the January 18, 1994 order.
A.
Following the conclusion of the first phase of the hearings, the trial court
filed a memorandum opinion on December 23, 1993, directing Mr. Turner to “pay
Ms. Turner the sum of $3,500 per month for alimony and child support, beginning
December 30, 1993.” Since he had already paid Ms. Tuner $3,000 during the first
week of December 1993, Mr. Turner did not pay Ms. Turner $3,500 on December
30, 1993, but rather delayed making his first payment until January 28, 1994. Ms.
Turner filed a petition on February 1, 1994, seeking to hold Mr Turner in criminal
contempt for his willful failure to pay her $3,500 on December 30, 1993.
During the next two months, Mr. Turner paid Ms. Turner $3,500 on
February 28 and March 31, 1994. Accordingly, by the April 12, 1994 hearing,
Mr. Turner had made only three of the four monthly payments required by the
January 18, 1994 order that embodied the trial court’s December 23, 1993
memorandum opinion. Rather than asserting financial inability, Mr. Turner
announced at the contempt hearing that he did not think he should have been
required to pay Ms. Turner $3,500 on December 30, 1993, because he had already
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paid her $3,000 earlier in the month. He offered no explanation for his failure to
seek a modification or clarification from the trial court concerning this issue.
B.
Criminal contempt sanctions serve as punishment for willfully refusing to
comply with a court’s order. Thigpen v. Thigpen, 874 S.W.2d at 53; Storey v.
Storey, 835 S.W.2d 593, 599 (Tenn. Ct. App. 1992). Their purpose is to vindicate
the authority of the law and the court as an organ of society. State ex rel. Agee v.
Chapman, 922 S.W.2d 516, 519 (Tenn. Ct. App. 1995); Robinson v. Gaines, 725
S.W.2d 692, 694 (Tenn. Crim. App. 1986). The punishment for criminal contempt
is fixed, not conditional, and must be served even if the contemner later complies
with the court’s order. Robinson v. Gaines, 725 S.W.2d at 694.
The evidence adduced at the April 12, 1994 hearing demonstrates beyond
a reasonable doubt that Mr. Turner was aware of the trial court’s December 23,
1994 memorandum opinion and that he specifically understood that the trial court
had directed him to pay Ms. Turner $3,500 on December 30, 1993. The evidence
also demonstrates that Mr. Turner could have paid the money to Ms. Turner but
chose not to because he had already paid Ms. Turner $3,000 earlier in the month.
He assumed that his earlier payment obviated the necessity of paying Ms. Turner
$3,500 on December 30, 1993. As a practicing litigator and officer of the court,
Mr. Turner was well acquainted with the importance of complying with court
orders and with the necessity of seeking relief from these orders rather than
unilaterally ignoring them. Since Mr. Turner offered no cogent reason for
ignoring the trial court’s December 23, 1993 memorandum opinion, the trial court
had ample grounds to find him in criminal contempt.
VII.
COMMUNICATIONS WITH THE DISABILITY INSURANCE CARRIER
The trial court’s October 5, 1994 order placed restrictions on Mr. Turner’s
communications with his disability insurance carrier concerning his intentions to
resume a litigation practice. Mr. Turner asserts that this order interferes with his
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contractual obligations under the disability policy. For her part, Ms. Turner insists
that the restrictions will prevent Mr. Turner from retaliating against her and their
children by spitefully cutting off his family’s only source of support. We have
determined that the trial court’s restrictions should be modified.
Mr. Turner has earned no income from the practice of law since 1990. By
his own admission, his mental condition has rendered him disabled since prior to
April 1991. While such a turn of events would be catastrophic for most persons,
Mr. Turner had the foresight to purchase a disability insurance policy under which
he has been receiving approximately $12,000 per month in disability benefits
since July 1993. At the outset, the policy required Mr. Turner to provide proof of
his continuing disability each month, but, beginning in 1994, his disability
insurance carrier only required biannual proof of disability.
Mr. Turner has attempted without success to resume some sort of law
practice. As late as April 1994, he informed the trial court that he did not intend
to resume practicing as a litigator. Four months later, however, he informed the
trial court that he was greatly encouraged by his prognosis and that he intended
to inform his disability insurance carrier of his intention to begin a litigation
practice. Responding to this announcement, the trial court stated:
But I want it to be an order coming out of this today,
that there is to be no communication from Mr. Turner
to his insurance company about what he undertakes to
do unless he is of leave of this court to do that.
* * *
And I don’t really care whether you want to take
up the practice of trial law or not. This family needs the
support. And when Mr. Turner can establish that he can
go be a trial lawyer, or be a professor, or sell clothes at
Levi’s [sic], I don’t care what he does.
But if there is going to be a threshold point where
he is going to stop getting these payments, I want to
know about it and I want to be the first to know. And
then we’ll make some determination. Because I assume
that these disability payments are also incremental.
* * *
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We’ve been paying her thirty-five hundred
dollars and we have been setting child support with that
and until we even begin to approach that from other
sources, there is no reason why these disability
payments cannot continue because that’s why you pay
for disability payments.
So, with that caveat, I’m happy to hear what he is
planning to do, but I don’t what one shred of
communication between Mr. Turner and Provident
unsolicited, because the last statement we have from his
physician is that he is disabled from practicing as an
attorney. And I don’t have anything showing
differently.
Consistent with its comments from the bench, the trial court’s October 5, 1994
order provided:
It is, further ORDERED that the Husband is
restrained and enjoined from contacting Provident
Insurance Company and advising them that he plans to
become a trial attorney until he has established a trial
practice.
It is further ORDERED that in the event the
Husband receives any unsolicited communication from
the insurance company inquiring regarding his future
career plans, the Husband shall provide same to his
attorney, and if necessary in the option of Husband’s
counsel, obtain court approval to fashion a response.
Mr. Turner’s statements about his desire to resume litigating presented the
trial court with a dilemma. On one hand, all the available medical evidence and
Mr. Turner’s own unsuccessful efforts, indicated that Mr. Tuner was incapable of
maintaining a successful litigation practice. On the other hand, an independent
psychiatrist had informed Mr. Turner that his prognosis for a full recovery at some
future time was good. The trial court properly took steps to guard against the
premature, unwarranted curtailment of Mr. Turner’s disability benefits. However,
it should have balanced Mr. Turner’s obligation to cooperate with his disability
insurance carrier with Ms. Turner’s justified concern that Mr. Turner might
jeopardize his only source of income simply to retaliate against his family.
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Any judicial oversight of Mr. Turner’s dealings with his disability insurance
carrier must take into account that Mr. Turner is not entitled to receive disability
benefits if he is no longer disabled. Mr. Turner’s policy defines disability in terms
of inability “to perform the substantial and material duties of your occupation,”
not in terms of income earned. Thus, it is possible that Mr. Turner would not be
considered disabled under his policy if he resumed his litigation practice but failed
to generate income commensurate with his disability benefits. After all, it would
be reasonable to expect that Mr. Turner will require some time to rebuild a
litigation practice after being away from it for so long.
The trial court erred by equating Mr. Turner’s disability to practice as a
litigator with his ability to earn income. Accordingly, the October 5, 1994 order
should be modified by deleting the restriction against Mr. Turner advising his
disability insurance carrier of his plans to resume his litigation practice “until he
has established a trial practice.” Instead, the trial court should require Mr. Turner
to notify both the court and Ms. Turner before he informs his disability insurance
carrier that he is no longer disabled. Upon receipt of this notice, the trial court
may conduct a hearing, either on its own motion or at Ms. Turner’s request,
concerning Mr. Turner’s disability status. Mr. Turner shall have the burden of
proving by competent medical evidence that he is no longer disabled. If Mr.
Turner carries his burden, the court must permit him to notify his disability
insurance carrier that he is no longer disabled. If he fails to satisfy the trial court
that he is no longer disabled, the trial court may enjoin Mr. Turner from informing
his disability insurance carrier that he is no longer disabled.
The trial court should place similar restrictions on Mr. Turner’s responses
to inquiries from his disability insurance carrier. Before responding that he is no
longer disabled, Mr. Turner must provide advance notice to both the trial court
and Ms. Turner so that a hearing on his disability status, if necessary, may be
conducted before he sends his response to his insurance company.
VIII.
THE AWARD FOR DISCRETIONARY COSTS
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As a final matter, Mr. Turner takes issue with the trial court’s decision to
require him to reimburse Ms. Turner for $8,938.35 in discretionary costs. He
argues that Ms. Turner received sufficient liquid assets to pay these costs. We
have determined that the trial court properly taxed these costs to Mr. Turner in
accordance with Tenn. R. Civ. P. 54.04(2).
Trial courts may tax certain litigation costs against the losing party. Hodges
v. S.C. Toof & Co., 833 S.W.2d 896, 902 (Tenn. 1992); Lock v. National Union
Fire Ins. Co., 809 S.W.2d 483, 490 (Tenn. 1991). Tenn. R. Civ. P. 54.04(2) lists
the taxable costs, and courts generally award these costs, if they are reasonable,
to prevailing parties who file a timely, properly supported motion. Dent v. Holt,
App. No. 01A01-9302-CV-00072, 1994 WL 440916, at *3 (Tenn. Ct. App. Aug.
17, 1994) (No Tenn. R. App. P. 11 application filed).
Ms. Turner supported her motion for costs with affidavits documenting
$12,373.29 in litigation expenses, including expert witness fees, court reporters’
fees, and other costs. The trial court scrutinized these affidavits and disallowed
the expenses for such things as an investigator, copies of bank records, copying
expenses, and for fees for service of process. Based on our independent review
of the record, we decline to find that the trial court erred by taxing $8,938.35 in
discretionary costs to Mr. Turner.
IX.
We affirm the trial court’s orders and judgments as modified herein and
remand the case to the trial court for the appropriate modification of its orders
consistent with this opinion and for what ever other proceedings may be required.
We also tax the costs of this appeal in equal proportions to Robert Phillips Turner,
Jr. and his surety and to Ginger Dianne Griggs Turner for which execution, if
necessary, may issue.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
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________________________________
SAMUEL L. LEWIS, JUDGE
________________________________
BEN H. CANTRELL, JUDGE
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