Freddie Odell Norris v. Susan Marguriete Norris ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 8, 2015
FREDDIE ODELL NORRIS v. SUSAN MARGURIETE NORRIS
Appeal from the Probate and Family Court for Cumberland County
No. 2014PF3898 Larry Warner, Judge
No. E2014-02353-COA-R3-CV-FILED-AUGUST 24, 2015
This appeal arises from a divorce. Freddie Odell Norris (“Husband”) sued Susan
Marguriete Norris (“Wife”) for divorce in the Probate and Family Court for Cumberland
County (“the Trial Court”). The Trial Court granted a divorce to Husband on the ground
of irreconcilable differences and ordered him to pay transitional alimony. Wife appeals
to this Court, raising a number of issues. We amend the divorce decree to modify the
grounds for divorce, modify the alimony type from transitional to in futuro, and remand
this case for a calculation of reasonable attorney‟s fees for Wife. The judgment of the
Trial Court is modified and this matter is remanded to the Trial Court for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court
Modified; Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Holly A. Lee, Crossville, Tennessee, for the appellant, Susan Marguriete Norris.
William T. Ridley, Crossville, Tennessee, for the appellee, Freddie Odell Norris.
OPINION
Background
After approximately 20 years of marriage, Husband sued Wife for divorce
in the Trial Court in May 2014. No children were born of the marriage. Both parties
were around age 50. Husband alleged inappropriate marital conduct and irreconcilable
differences as grounds for divorce. Wife filed an answer and counterclaim for divorce,
alleging adultery, inappropriate marital conduct, abandonment, and irreconcilable
differences as grounds. The parties engaged in Rule 31 mediation. The parties resolved
their issues except as to fault, alimony and attorney‟s fees. This case was tried on these
remaining issues in October 2014.
Wife testified to her background. Wife had earned a high school diploma.
Wife worked full-time at Food City for the first ten to eleven years of the marriage. Wife
then held part-time employment through 2010. When not employed, Wife continued to
make significant financial contributions to the marriage with funds inherited from her
father late in the marriage. Wife deposited her inheritance disbursements into the parties‟
joint bank account. After receiving the inheritance, the parties spent a great deal of
money on a variety of personal items. The parties also owned a mobile home. The
property was encumbered by a $39,000 mortgage, exceeding its value. Husband had a
small retirement account. The parties held $13,000 in a savings account at the time
Husband left the home. Regarding her health, Wife testified to her history of depression.
Wife‟s grandmother had committed suicide. After the parties‟ separation, Wife
contemplated suicide. Wife later found work in the form of a part-time job at 15 hours
per week at Fairfield Glade Community Center. Wife‟s expenses totaled $1,400 per
month. Wife had searched unsuccessfully for better paying work.
Husband testified. Husband had earned a GED. Soon after marrying Wife,
Husband began work for Wyndham. Husband now is head of the construction
department and earns a salary of $61,000 per year. A major point of contention between
the parties was marital intimacy. According to Husband, the parties had not had sex in
the last seven or eight years of the marriage. According to Wife, it had been around one
year since the parties last had sex. The parties also argued over money matters. Husband
testified that Wife was not performing her “wifely duties,” meaning sex, and was not
cleaning the house. Shortly after the separation from Wife, Husband began cohabitating
with another woman. Husband went on hunting trips and other excursions, some of
which were costly. Husband stated that his net income was $3,809 per month, and that
his expenses were around the same amount. Some of Husband‟s obligations went
towards rent and utilities. Husband also had suffered from a pituitary tumor.
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In February 2015, the Trial Court entered its amended final decree of
divorce, stating as follows therein:
This cause came to be heard on the 29th day of October, 2014, in the
Probate and Family Court for Cumberland County, Tennessee, before the
Honorable Judge Larry Warner. Based on testimony of the Parties and
witnesses, arguments of counsel, and considering the record as a whole, the
Court does find:
1. That the Plaintiff, Freddie Odell Norris, is hereby granted an absolute
divorce from the Defendant, Susan Marguriete Norris, on the grounds of
irreconcilable differences. Both Parties are hereby restored to all rights and
privileges of unmarried persons.
2. That the Court affirmatively adopts and approves the stipulated and
attached property settlement agreement (Exhibit A)
3. After considering all relevant factors contained within Tennessee Code
Annotated § 36-5-121, as well as the testimony of the Parties and
arguments of counsel, the Defendant, Susan Marguriete Norris, is entitled
to transitional alimony in the amount of $500.00 per month beginning
November 1, 2014, and continuing for a period of one (1) year.
4. That each Party shall be responsible for their own reasonable attorney
fees.
5. Each attorney, after providing good and valuable services, is hereby
relieved of any other and further duties as it relates to this matter within 30
days of entry of this Order.
6. That all costs associated with this proceeding are hereby taxed to each
Party equally for which execution may issue if necessary.
Under the agreement between the parties as to property division, Wife retained the
marital residence. Wife filed a timely appeal to this Court.
Discussion
Although not stated exactly as such, Wife raises the following four issues
on appeal: 1) whether the Trial Court erred in failing to make adequate findings of fact
and conclusions of law; 2) whether the Trial Court erred in granting Husband a divorce
on the ground of irreconcilable differences; 3) whether the Trial Court erred in the type,
duration, and amount of alimony it awarded Wife; and, 4) whether the Trial Court erred
in declining to award attorney‟s fees to Wife.
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Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court‟s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
We first address whether the Trial Court erred in failing to make adequate
findings of fact and conclusions of law. The Trial Court‟s order in this case was, indeed,
sparse in its findings. Without findings of fact from a trial court, we have nothing upon
which to presume correctness. Regarding how this Court may proceed when confronted
with limited findings of fact and conclusions of law, we have stated:
We note . . . that Rule 52.01 of the Tennessee Rules of Civil Procedure
requires the trial court to state expressly its findings of fact and conclusions
of law, even where the parties do not request it. Tenn. R. Civ. P. 52.01. If
the trial court fails to do so, its decision is normally vacated and the cause
remanded for such findings and conclusions; however, the appellate court
may, in some circumstances, “soldier on” in the absence of them. See
Town of Middleton v. City of Bolivar, No. W2011-01592-COA-R3-CV,
2012 WL 2865960, at *26 (Tenn. Ct. App. July 13, 2012).
In re: S.J., 387 S.W.3d 576, 594 n. 9 (Tenn. Ct. App. 2012).
In our judgment, this is a case in which we can “soldier on” despite the
absence of detailed findings of fact. We have available to us a record consisting of a
technical record, a volume of transcript, and exhibits. We are not so inhibited by the
Trial Court‟s limited order so as to be unable to resolve the issues on appeal. In the
interest of judicial economy and to save the parties additional expenses, we elect to
proceed and make our own determinations regarding where the preponderance of
evidence lies as necessary.
We next address whether the Trial Court erred in granting Husband a
divorce on the ground of irreconcilable differences. Regarding the ground of
irreconcilable differences, Tennessee law provides in part:
No divorce shall be granted on the ground of irreconcilable differences
unless the court affirmatively finds in its decree that the parties have made
adequate and sufficient provision by written agreement for the custody and
maintenance of any children of that marriage and for the equitable
settlement of any property rights between the parties. If the court does not
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affirmatively find that the agreement is sufficient or equitable, the cause
shall be continued by the court to allow further disposition by the
petitioner. If both parties are present at the hearing, they may, at that time,
ratify any amendments the court may have to the agreement. The amended
agreement shall then become a part of the decree. The agreement shall be
incorporated in the decree or incorporated by reference, and such decree
may be modified as other decrees for divorce.
Tenn. Code Ann. § 36-4-103(b)(2014).
Wife argues that the Trial Court erred in granting Husband a divorce on the
ground of irreconcilable differences because the divorce was contested and fault was at
issue. Initially, we note that this appeal does not rise or fall on this particular issue. Both
parties asked for and plainly want a divorce. Nevertheless, the issue of grounds for
divorce has been raised properly, and we will consider it. We agree with Wife that, under
the evidence, irreconcilable differences was not a suitable ground for divorce. In the
alternative, both parties alleged inappropriate marital conduct as a ground for divorce.
This Court has described inappropriate marital conduct as follows:
Inappropriate marital conduct can be found when “[t]he husband or the wife
is guilty of such cruel and inhuman treatment or conduct towards the
spouse as renders cohabitation unsafe and improper....” Tenn. Code Ann. §
36-4-101(11) (2001); see Eldridge v. Eldridge, 137 S.W.3d 1, 23-24 (Tenn.
Ct. App. 2002). Thus, inappropriate marital conduct is established when
“either or both of the parties [have] engaged in a course of conduct which
(1) caused pain, anguish or distress to the other party and (2) rendered
continued cohabitation „improper,‟ „unendurable,‟ „intolerable,‟ or
„unacceptable.‟ ” Eldridge, 137 S.W.3d at 24 (quoting Earls v. Earls, 42
S.W.3d 877, 892 (Tenn. Ct. App. 2000) (Cottrell, J., concurring)).
Chaffin v. Ellis, 211 S.W.3d 264, 289 (Tenn. Ct. App. 2006).
The evidence in the record shows that neither party was faultless in the
breakdown of their marriage. Indeed, Wife testified that some fault was hers. We find a
preponderance of the evidence in the record shows that both parties engaged in
inappropriate marital conduct. In situations where both parties are at fault and there
exists proof of any ground for divorce, Tennessee law provides the following option:
(a) In all actions for divorce from the bonds of matrimony or legal
separation the parties may stipulate as to grounds and/or defenses.
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(b) The court may, upon stipulation to or proof of any ground of divorce
pursuant to § 36-4-101, grant a divorce to the party who was less at fault or,
if either or both parties are entitled to a divorce or if a divorce is to be
granted on the grounds of irreconcilable differences, declare the parties to
be divorced, rather than awarding a divorce to either party alone.
Tenn. Code Ann. § 36-4-129 (2014).
In light of our finding regarding both parties‟ inappropriate marital conduct, we amend
the Trial Court‟s judgment to declare the parties to be divorced, rather than grant a
divorce to either party alone.
We next address whether the Trial Court erred in the type, duration and
amount of alimony it awarded Wife. Our Supreme Court has discussed awards of
spousal support as follows:
This Court has frequently recognized that trial courts in Tennessee have
broad discretion to determine whether spousal support is needed and, if so,
to determine the nature, amount, and duration of the award. See
Gonsewski, 350 S.W.3d at 105; Bratton v. Bratton, 136 S.W.3d 595, 605
(Tenn. 2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001);
Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). Because a trial
court‟s “decision regarding spousal support is factually driven and involves
the careful balancing of many factors,” Gonsewski, 350 S.W.3d at 105
(footnote omitted), the role of an appellate court is not to second guess the
trial court or to substitute its judgment for that of the trial court, but to
determine whether the trial court abused its discretion in awarding, or
refusing to award, spousal support. Id. “An abuse of discretion occurs
when the trial court causes an injustice by applying an incorrect legal
standard, reaches an illogical result, resolves the case on a clearly erroneous
assessment of the evidence, or relies on reasoning that causes an injustice.”
Id. (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.
2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). In
determining whether the trial court abused its discretion, an appellate court
“should presume that the [trial court‟s] decision is correct and should
review the evidence in the light most favorable to the decision.”
Gonsewski, 350 S.W.3d at 105-06; see also Tenn. R. App. P. 13(d)
(“[R]eview of findings of fact by the trial court in civil actions shall be de
novo upon the record of the trial court, accompanied by a presumption of
the correctness of the finding [s], unless the preponderance of the evidence
is otherwise.”).
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***
Tennessee recognizes four distinct types of spousal support: (1)
alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4)
transitional alimony. Tenn. Code Ann. § 36-5-121(d)(1) (2010 & Supp.
2012). Alimony in futuro, a form of long-term support, is appropriate when
the economically disadvantaged spouse cannot achieve self-sufficiency and
economic rehabilitation is not feasible. Gonsewski, 350 S.W.3d at 107.
Alimony in solido, another form of long-term support, is typically awarded
to adjust the distribution of the marital estate and, as such, is generally not
modifiable and does not terminate upon death or remarriage. Id. at 108.
By contrast, rehabilitative alimony is short-term support that enables a
disadvantaged spouse to obtain education or training and become self-
reliant following a divorce. Id.
Where economic rehabilitation is unnecessary, transitional alimony
may be awarded. Transitional alimony assists the disadvantaged spouse
with the “transition to the status of a single person.” Id. at 109 (internal
quotation marks omitted). Rehabilitative alimony “is designed to increase
an economically disadvantaged spouse‟s capacity for self-sufficiency,”
whereas “transitional alimony is designed to aid a spouse who already
possesses the capacity for self-sufficiency but needs financial assistance in
adjusting to the economic consequences of establishing and maintaining a
household without the benefit of the other spouse‟s income.” Id.
Consequently, transitional alimony has been described as a form of short-
term “bridge-the-gap” support designed to “smooth the transition of a
spouse from married to single life.” Engesser v. Engesser, 42 So. 3d 249,
251 (Fla. Dist. Ct. App. 2010).
***
Tennessee statutes concerning spousal support reflect a legislative
preference favoring rehabilitative or transitional alimony rather than
alimony in futuro or in solido. See Tenn. Code Ann. § 36-5-121(d)(2)-(3);
Gonsewski, 350 S.W.3d at 109. Not even long-term support is a guarantee
that the recipient spouse will be able to maintain the same standard of
living enjoyed before the divorce because “two persons living separately
incur more expenses than two persons living together.” Gonsewski, 350
S.W.3d at 108 (quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct.
App. 1998)). Although the parties‟ standard of living is a factor courts
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must consider when making alimony determinations, see Tenn. Code Ann.
§ 36-5-121(i)(9), the economic reality is that the parties‟ post-divorce assets
and incomes often will not permit each spouse to maintain the same
standard of living after the divorce that the couple enjoyed during the
marriage. Gonsewski, 350 S.W.3d at 113. Decisions regarding the type,
length, and amount of alimony turn upon the unique facts of each case and
careful consideration of many factors, with two of the most important
factors being the disadvantaged spouse‟s need and the obligor spouse‟s
ability to pay. Id. at 109-10.
Mayfield v. Mayfield, 395 S.W.3d 108, 114-16 (Tenn. 2012).
There are a number of statutory factors to be considered in determining the
nature and amount of alimony:
(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 §
36-4-121;
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(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) (2014).
The Trial Court awarded Wife $500 per month for twelve months in
transitional alimony. On appeal, Wife argues that this spousal support award is
insufficient. Several relevant statutory factors come into play. Wife has not worked full-
time in a number of years. Wife did contribute her not insignificant inheritance to the
marriage, and both parties spent that money to maintain their standard of living during
the marriage. While Wife‟s inheritance now is gone, Husband still retains his job and
ability to earn $61,000 per year. This was a 21 year marriage. Wife earns a meager
$7.80 per hour. Meanwhile, Husband earns $61,000 per year, and took years to rise to
that income level.
Trial courts have wide latitude in arriving at decisions regarding spousal
support, and we are not inclined to tweak or second-guess trial courts on spousal support
matters. In this case, however, the Trial Court made no detailed findings of facts to
support its decision. It is unclear to us how the Trial Court apparently concluded that
Wife would be capable of transitioning to an economic status on par with Husband post-
divorce given her comparatively modest earning history. While long-term spousal
support is disfavored, it is still available in those cases where it is appropriate. We
believe this to be such a case. We note that Husband fully participated with Wife in
spending her separate inheritance during the last few years of the marriage to maintain
their standard of living. While Wife appears to be able to work full-time, it is clear from
the record that, even were she to obtain full-time employment, she clearly still would be
at an economic disadvantage to Husband. Under this record, Wife clearly has the
financial need for and Husband just as clearly has the ability to pay the $500 per month.
Therefore, we modify the type of alimony awarded Wife from transitional alimony to
alimony in futuro. We do not disturb the amount of alimony awarded, that of $500 per
month.
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The final issue we address is whether the Trial Court erred in declining to
award attorney‟s fees to Wife. With respect to the award of attorney‟s fees in divorce
cases, our Supreme Court has stated:
It is well-settled that an award of attorney‟s fees in a divorce case
constitutes alimony in solido. The decision whether to award attorney‟s
fees is within the sound discretion of the trial court. As with any alimony
award, in deciding whether to award attorney‟s fees as alimony in solido,
the trial court should consider the factors enumerated in Tennessee Code
Annotated section 36-5-121(i). A spouse with adequate property and
income is not entitled to an award of alimony to pay attorney‟s fees and
expenses. Such awards are appropriate only when the spouse seeking them
lacks sufficient funds to pay his or her own legal expenses or the spouse
would be required to deplete his or her resources in order to pay them.
Thus, where the spouse seeking such an award has demonstrated that he or
she is financially unable to procure counsel, and where the other spouse has
the ability to pay, the court may properly grant an award of attorney‟s fees
as alimony.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (citations omitted).
Our analysis on this issue is similar to that of the alimony issue. Wife
clearly is the economically disadvantaged spouse. She has displayed financial hardship,
lacks the ability to pay her legal expenses, and Husband has the ability to pay. Wife
should not be made to deplete her relatively limited resources. We hold that the Trial
Court erred in declining to award Wife her attorney‟s fees. We remand this case to the
Trial Court to calculate a reasonable award of attorney‟s fees to Wife.
In summary, we amend the Trial Court‟s judgment to declare the parties to
be divorced, rather than award a divorce to either party alone. We modify the type of
alimony awarded to Wife from transitional alimony to alimony in futuro, although we do
not disturb the amount of alimony, $500 per month. With respect to attorney‟s fees, we
remand this case to the Trial Court for a calculation of reasonable attorney‟s fees to Wife.
Given our resolution of the issues on appeal and considering our modification of the Trial
Court‟s judgment, we decline to award either side their attorney‟s fees incurred on
appeal.
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Conclusion
The judgment of the Trial Court is modified, and this cause is remanded to
the Trial Court for further proceedings consistent with this Opinion, and for collection of
the costs below. The costs on appeal are assessed against the Appellee, Freddie Odell
Norris.
_________________________________
D. MICHAEL SWINEY, JUDGE
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