Kathy Gale (Phillips) Bennett v. William Thomas Bennett ( 1995 )

KATHY GALE (PHILLIPS) BENNETT, )
)
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9501-GS-00006
VS. )
) Wilson General Sessions
) No. 3973
WILLIAM THOMAS BENNETT, )
Defendant/Appellant.
)
) FILED
Sept. 20, 1995
COURT OF APPEALS OF TENNESSEE Cecil Crowson, Jr.
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE GENERAL SESSIONS COURT OF WILSON COUNTY
AT LEBANON, TENNESSEE
THE HONORABLE ROBERT HAMILTON, JUDGE
JESSICA DAWN DUGGER
109 Castle Heights Avenue North
Lebanon, Tennessee 37087
Attorney for Plaintiff/Appellee
MICHAEL W. FERRELL
3125 N. Mt. Juliet Road
P. O. Box 8
Mt. Juliet, Tennessee 37122
Attorney for Defendant/Appellant
AFFIRMED AS MODIFIED
AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
LEWIS, J.
KOCH, J.
OPINION
This case involves a divorce ending a marriage of short duration. The
General Sessions Court of Lebanon, Tennessee granted the divorce to both parties,
dividing the marital property between them, and ordering the husband to pay $100 per
month in rehabilitative alimony for fourteen years. The husband appealed, arguing
that the trial court erred in dissolving the parties' marriage without reference to fault,
in its division of marital property, and in ordering the payment of alimony. The wife
appealed the trial court's refusal to grant her claim for attorney fees.
We affirm the trial court's judgment on those matters. However, we
believe the trial court erred in overruling the husband's post-judgment motion to Alter
or Amend, wherein he asked that the court permit the $20,000 lump sum payment
required of him to be commuted into four annual installments of $5,000 each. We
accordingly grant the husband's motion.
I.
William Bennett and Kathy Phillips married in April of 1990. The
marriage was his fourth and her third. Mr. Bennett had two grown children by an
earlier marriage. His new wife had three teenage sons at home. Two months after
the parties were married, Mrs. Bennett was diagnosed with multiple sclerosis, an
incurable and progressively debilitating disease, which affects eyesight, hearing,
mobility and cognition. Though the decree of divorce has now restored her maiden
name to the wife, in the interest of clarity we will refer to her throughout this opinion
as Mrs. Bennett.
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Mr. Bennett was attentive to his wife's medical needs. He gave her
massages, took her to the doctor, kept her supplied with necessary medications, and
purchased specialized therapeutic equipment for her. However, as her physical
condition deteriorated, so did the parties' relationship.
They separated in September of 1993, with Mrs. Bennett moving into her
own apartment. In November, she filed for divorce, alleging inappropriate marital
conduct by Mr. Bennett. The following month, Mr. Bennett filed his answer and
counter-claim, denying that he was guilty of inappropriate marital conduct, and
alleging inappropriate marital conduct on the part of his wife.
II. The Question of Fault
The inappropriate marital conduct alleged by the wife mostly had to do
with Mr. Bennett's irritability and his outbursts of anger. Mrs. Bennett, who had
formerly been a very active woman, became unable to keep up with the housework.
Her sons kept their rooms messy, and did not help very much. Mr. Bennett frequently
became angry and yelled at them, and cursed. The wife's youngest child related one
incident when Mr. Bennett struck him with a belt. Antagonism between Mr. Bennett
and his wife's children created strains between the husband and wife. Their sexual
relationship was adversely affected by tensions in the household as well as by the
progression of the wife's disease.
Mr. Bennett also vented his anger against his wife, though apparently
this occurred less frequently than with the children. The wife testified that he
sometimes became verbally abusive when her friends called her on the phone at
night. On one occasion he overheard her talking about her problems on the phone,
and yelled and cursed at her, wanting to know who she was airing their dirty laundry
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out to. Mrs. Bennett had been talking to her mother long distance, and her mother
heard his cursing. After this incident, Mrs. Bennett decided she wanted a separation.
The husband alleged that as the marriage relationship deteriorated, the
wife began an extra-marital affair with her first cousin, a man named Bob Phillips. The
wife testified that Mr. Phillips had been known as the black sheep of the family, but
that he changed his ways. In August of 1993, Mr. Phillips began visiting the parties
on a regular basis, sometimes bringing his two young children, who were born from
a long term relationship with his former girlfriend.
Mr. Phillips would come by in the evening to talk with Mrs. Bennett.
When Mr. Bennett left the house to go to his night shift job at T.V.A., Mr. Phillips
would remain. When Mr. Bennett returned in the morning, the wastebaskets were
filled with empty beer cans. Mrs. Bennett admitted drinking with her cousin on some
of these occasions, even though alcohol was incompatible with her medication. Mr.
Phillips spent the night twice in the Bennett home while Mr. Bennett was at work, but
Mrs. Bennett's children testified that he slept in the living room while Mrs. Bennett
slept in her own room. Mrs. Bennett admitted that after the parties separated, Mr.
Phillips and his children stayed at her apartment on weekends, but she denied having
an affair with him.
The deposition of Mr. Phillips' former girlfriend (and the mother of his
children) was admitted into evidence over the objections of Mrs. Bennett's attorney.
The deposition stated facts that implied an improper relationship between Mr. Phillips
and Mrs.Bennett prior to her marriage to Mr. Bennett. The attorney for Mrs. Bennett
argued that any allegations concerning Mrs. Bennett's conduct prior to the marriage
was irrelevant to the divorce proceedings. The attorney for Mr. Bennett contended
that such evidence was necessary to rebut the inference that the the cousins enjoyed
nothing more than a normal family relationship.
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If the husband's allegations of marital infidelity by the wife are true, then
the wife's behavior would certainly support the grant of a divorce to the husband. But
it would not necessarily compel such a result. If the allegations are untrue, it would
still be fair to say that the wife is at fault, because her conduct increased the tensions
in the already strained marriage by introducing suspicion and jealousy into the
relationship.
Unfortunately, the trial court stated no findings of fact in relation to the
allegations made by the husband, so we do not know upon what basis he decided to
grant a divorce to both parties without reference to fault.
But even though the Final Decree of Divorce made no mention of fault,
we believe that the evidence shows that both parties must bear some responsibility
for the collapse of their marriage. Where both parties are guilty of acts that may
constitute grounds for divorce, the trial court can grant the divorce to the less guilty
party, see Hazard v. Hazard, 833 S.W.2d 911, 913 (Tenn.App. 1991), but it need not
do so, as the Tennessee statutes offers another option. Tenn. Code Ann. § 36-4-
129(b) reads in part:
The court may . . . upon proof, grant a divorce to the party
who was less at fault or, if either or both parties are entitled
to a divorce, declare the parties to be divorced, rather than
awarding a divorce to either party alone.
We believe this statute gives the trial court broad discretion to choose
whether or not to weigh the relative fault of the parties in fashioning a divorce decree,
even if one party is totally without fault. The trial judge in this case did not abuse that
discretion in granting a divorce to both parties without reference to fault.
III. Alimony
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The husband also contends that the trial court erred in ordering him to
pay alimony to his former wife. He argues that in a marriage of short duration, the trial
court should give less consideration to the needs of the dependent spouse, if those
needs are not greater than they were at the time of the marriage, and that
proportionally greater consideration should be given to the ability to pay of the obligor
spouse.
Mr. Bennett asserts that even without alimony, divorce has left his
former wife in no worse condition financially or physically than when the parties
married. He claims that Mrs. Bennett was already suffering symptoms of illness
related to her multiple sclerosis prior to their marriage, symptoms that he alleges she
concealed from him.
Even if Mr. Bennett's allegations are true, we believe that the proof
shows that Mrs. Bennett's needs have increased as a result of the continuing
progression of her disease, and that her ability to meet those needs has declined.
Though she has apparently gained some control over the symptoms of the disease
through the use of the drug Betaseron, she still has problems with her kidneys, with
balance and walking, and with her eyesight. With the loss to her of Mr. Bennett's
family medical insurance under T.V.A., she must now find another way to pay the
$900 monthly charge for continued Betaseron injections.
Mrs. Bennett is now unable to support herself by full-time work, but
depends upon a monthly social security disability check to pay her expenses. Most
recently, her check amounted to about $1200, which included a social security
supplement for two of her children (whose father is deceased). She also receives a
modest child support check from an ex-husband for her youngest child. Payments on
behalf of the children will cease when they reach the age of eighteen. Her social
security check will then be reduced to $366 per month.
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Prior to her marriage, Mrs. Bennett worked full-time for three years at
Precision Cable in Gallatin. She also has had training as an LPN, and worked at
Sumner County Regional Medical Center. The record does not contain precise
figures on her earnings in those positions, but even if she received minimum wage,
she clearly earned more than is provided by her portion of her current disability check.
Mr. Bennett is a twenty-three year veteran employee of T.V.A. In 1993,
his gross income from his job amounted to about $49,000, which included payment
for overtime work. The base pay for his current position is $42,390 per year. While
he is not wealthy, there is no doubt that he is financially far better off than is Mrs.
Bennett.
Admittedly, the marriage and divorce has had an adverse effect on Mr.
Bennett's finances. He assumed and paid Mrs. Bennett's pre-marital debts in the
amount of $1,258. He will also be responsible for all the debts incurred during the
marriage, including much that is attributable to treatment of the wife's condition. One
notable item is a specially-designed therapeutic chair for which the wife agreed to
make payments when it was purchased. The husband will now be responsible for
paying off the $1,822 still owing on the chair. Nevertheless, we believe he still has the
ability to pay the minimal amount of alimony ordered by the trial court, and there can
be no doubt as to her need for it.
IV. The Property Division
The husband takes issue with the trial court's grant of $20,000 to the
wife as her share in the appreciation of his T.V.A. retirement plan and 401(k) plan.
He does not dispute, however, that both plans appreciated in value during the course
of the marriage. We note that Tenn. Code Ann § 36-4-121(b)(1)(B) reads:
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"Marital property" includes income from, and any increase in
value during the marriage, of property determined to be
separate property in accordance with subdivision (b)(2) if
each party substantially contributed to its preservation and
appreciation and the value of vested pension, retirement or
other fringe benefit rights accrued during the period of the
marriage. (emphasis supplied).
The court has the right to "equitably divide, distribute or assign the
marital property between the parties without regard to marital fault in proportions as
the court deems just." See Tenn. Code Ann. § 36-4-121(a).
The appreciation in the husband's vested retirement benefits amounted
to almost $49,770, but the trial court noted that the retirement money was not
currently reachable by the husband, and that early withdrawal from the 401(k) plan
would result in the imposition of penalties and the payment of taxes. He accordingly
awarded the wife slightly less than a one half share of the appreciation in the
accounts.
The husband insists that the property division should be controlled by
the case of Batson v. Batson, 769 S.W.2d 849 (Tenn. App. 1988). In that case, the
trial court awarded the husband the entire amount of his retirement benefits, including
its appreciation during the course of the marriage, and this court affirmed the award.
However, the husband fails to note that we also found that the trial court
had misclassified the appreciation in the retirement accounts as the husband's
separate property, when by the operation of Tenn. Code Ann. § 36-4-121(b)(1) it
should have been classified as marital property. Batson at 856-857. In affirming its
division of the marital property, we noted that Tenn. Code Ann. § 36-4-121(a) "gives
the court wide discretion to adjust and adjudicate the parties' rights and interests in
all jointly owned property." Batson at 859.
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Dr. and Mrs. Batson were each enrolled in retirement plans. Their
marital estate included two condominiums and two promissory notes derived from the
sale of two different residences that the parties lived in during their marriage. The trial
court's decision to grant Dr. Batson the appreciation in his IRA and Keogh plans was
part of a comprehensive effort to equitably divide all the marital property, while
disentangling the financial affairs of the parties so they could get on with their lives.
Mrs. Batson received other financial assets from the marital estate (including a note
for over $44,000 and the appreciation in her own retirement plan) to balance the loss
to her of a portion of Dr. Batson's retirement.
In the case before us, the appreciation in the husband's retirement
accounts is the only substantial financial asset of the marital estate. Tenn. Code Ann.
§ 36-4-121(b) obligates the trial court to consider all relevant factors in making an
equitable division of marital property, and lists some of those factors, including "[t]he
age, physical and mental health, vocational skills, employability, earning capacity,
estate, financial liabilities and financial needs of each of the parties." In light of these
factors, we do not believe the trial court abused its discretion in granting Mrs. Bennett
$20,000 as her share in the appreciation of Mr. Bennett's retirement accounts.
V. The Motion to Alter or Amend
We do think, however, that the trial court erred in denying Mr. Bennett's
motion to be allowed to pay his $20,000 obligation in four annual installments of
$5,000 each. Other provisions of the divorce decree have left Mr. Bennett with an
obligation to pay almost $28,000 for the debts incurred during the marriage, a
substantial portion of which are directly related to his wife's medical needs.
The funds in Mr. Bennett's retirement plan are not yet available to him.
His 401(k) plan has a value of about $15,000, and is subject to an indebtedness of
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$8,500. If he liquidates the plan, he will have to satisfy that indebtedness and pay
income taxes, social security, and a 10% penalty for early withdrawal of the money.
That will leave only about $2,000 to be applied to the obligations flowing from the
divorce.
Mr. Bennett's other substantial asset is his home, in which his equity is
about $20,000. He plans to sell the home, but after paying a real estate commission
and other expenses involved with the sale, he would probably net about $15,000. He
owes $5,000 on a home equity line of credit that would also have to be repaid, leaving
him with only about $10,000 after the sale, and with a need to secure other housing.
Thus, it is clear to us that his obligations far exceed his current ability to
pay, and that by forcing him to pay $20,000 in a lump sum, we would be imposing
great financial hardship upon him. We accordingly grant his motion to be allowed to
pay his obligation in four annual installments.
VI. Attorney Fees
Mrs. Bennett argues that the trial court erred in not awarding her the
attorney fees she incurred at the trial level. She also asks this court to assess her
attorney fees on appeal against her former husband.
In divorce actions, the trial court is vested with wide discretion in the
allocation of attorney fees. Threadgill v. Threadgill, 740 S.W.2d 419, 426 (Tenn. App.
1987). We note that the wife has incurred attorney fees in the amount of $2,355 at
the trial level, an amount that she will able to pay from her share of the marital
property. We find that the trial court did not abuse its discretion in requiring each
party to be responsible for that party's own attorney fees.
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VII..
We affirm the judgment of the trial court except for its denial of the
husband's Motion to Alter or Amend, which we reverse. This cause is remanded to
the trial court for further proceedings consistent with this opinion. Tax the costs on
appeal equally between the appellant and the appellee.
_________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
SAMUEL L. LEWIS, JUDGE
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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