Michael Todd Culver v. Lisa Culver ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 11, 2015 Session
MICHAEL TODD CULVER v. LISA CULVER
Appeal from the Circuit Court for Hamilton County
No. 12D1015 Jacqueline S. Bolton, Judge
No. E2014-01201-COA-R3-CV-FILED-JUNE 26, 2015
This appeal arises from a divorce. After 20 years of marriage, Michael Todd Culver
(“Husband”) sued Lisa Culver (“Wife”) for divorce in the Circuit Court for Hamilton
County (“the Trial Court”). After a trial, the Trial Court divided the marital estate and
granted the parties a divorce. Wife appeals to this Court. We hold, inter alia, that the
Trial Court did not commit reversible error in its valuation or division of the marital
estate, or in declining to find Husband in contempt. We hold further that the Trial Court
erred in adding $500 per month in alleged rental income to Wife’s income for child
support purposes. We, therefore, reverse that portion of the Trial Court’s judgment and
remand for a new calculation of child support. We affirm, in part, and, reverse, in part,
the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed, in part, and, Reversed, in part; Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.
Leslie B. McWilliams, Chattanooga, Tennessee, for the appellant, Lisa Culver.
Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Michael Todd Culver.
OPINION
Background
Husband and Wife were married in 1992. The parties have two minor
children, K.C. and T.C. In May 2012, Husband filed for divorce against Wife. In
September 2013, Wife filed a motion for contempt, alleging that Husband had failed to
pay his court ordered portion of the children’s private school tuition. This case was tried
in December 2013.
Both parties are college-educated and in their mid-forties. Husband is a
member of the National Guard, and also an information technologist at CSX Railroad.
Wife is an auditor for the city of Chattanooga. Husband’s monthly income was
$6,204.00, and Wife’s monthly income was $5,558.00. The parties agreed that they
would each keep their own pensions from their respective employers. The parties
stipulated that Wife should be the primary residential parent of their two daughters.
Husband testified that Wife controlled the parties’ finances during the marriage and made
poor financial decisions. Wife, on the other hand, alleged that Husband dissipated
marital assets. Indeed, Husband took a trip to Disney World with his female friend, her
two children, and the parties’ children.
In January 2014, the Trial Court entered a memorandum opinion. In March
2014, the Trial Court entered its final decree incorporating its January 2014
memorandum opinion. The Trial Court stated in its memorandum opinion, in part:
The parties have dissipated much of their assets of the marriage.
Though the parties have been attempting to sell the marital home, the only
offer they received would result in a negative $4,000.00 deficiency on the
mortgage. Each of the parties took half of the RV debt. The marital home
is valued, according to the Court, at $185,000.00 with a $168,000.00
mortgage. Once the divorce was filed, the Wife’s sister-in-law moved into
the home. Husband alleges that part of the problem that the house has not
sold is that because the sister-in-law moved in the house is piled with
clutter, boxes and other unseemly items which negatively affect its
saleability. The house has been on the market for at least 10 months. The
house was purchased for $140,000.00 in 2006 and the parties made some
$30,000.00 in improvement to the house. Wife thinks the house is worth
$177,000.00; he says $190,000.00.
-2-
Husband alleges that because he was deployed overseas for much of
their marriage, Wife had control of all the income in the home. Husband
basically states that Wife was a spendthrift during the marriage.
There is no doubt that since returning to the states, Husband has
dissipated some assets, including nearly $3,000.00 for pearls, a motorcycle,
a Disney trip, which costs over $6,000.00. He took a loan against his 401k
of some $13,500.00. He has also had to pay $8,200.00 +/- in attorneys fees
so far. The Court specifically finds that though Husband made many
withdrawals from joint funds, Wife was actually the “captain of the ship”
during the time he was deployed as to the funds of both parties and she ran
up substantial debts during this time.
Husband’s income is $6,204.00 per month and Wife’s is
approximately the same at $5,558.00 per month. The Wife also receives
$500.00 in rental income each month. Husband says the $13,500.00 he
withdrew from the 401k did not all go to him but that over $8,000.00 of
that he sent to Wife.
***
From all of which the Court finds as follows: Value of the house is
$185,000.00 according to the Court subtracting the mortgage of
$167,000.00, the Court finds that there is an equity of $18,000.00. The
Court finds that the Husband should be awarded $6,000.00 in equity and he
will quitclaim the home to the Wife. The Court bases the equity
determination upon Wife’s spending while she was in charge of the parties’
money while Husband was overseas, and Husband’s dissipation of some of
the assets of the marriage once he returned home.
The Trial Court awarded $53,947 in marital assets to Wife, and $53,216 to
Husband. The Trial Court assigned $31,709 in marital liabilities to Wife, and $17,041 to
Husband. Wife was designated primary residential parent of the parties’ two children. In
its final decree, the Trial Court stated as follows, in part:
4. The Defendant is awarded the marital home subject to her
payment of $6,000.00 to the Plaintiff for his share of the marital equity
therein. Plaintiff will quitclaim the home to the Defendant upon receipt of
his equity.
5. The Plaintiff is awarded his Thrift Savings Plan, the CSX
401(k), Schwab IRA account ending in No. 5539, the 2007 Toyota Tundra,
-3-
the Victory Motorcycle, his furniture, including the master bedroom suite
and desk from the marital home, and his tools, including the Malcita Kit.
6. The Defendant is awarded $5,000.00 from Plaintiff’s CSX
401(k), $4,152.00 from Plaintiff’s Schwab IRA account ending in No.
5539, $22,501.00 from Plaintiff’s Schwab Contributory IRA account
ending in No. 4572, Schwab account ending in No. 5867, the 2005 Saturn
Vue, the 2002 Toyota Sequoia, yard tools and pressure washer.
7. The Plaintiff shall pay the USAA card no. 9754, the USAA
credit card no. 1396, USAA Mastercard, the RV deficiency, and his
personal loans.
8. The Defendant shall pay the Chase Disney Visa credit card
no. 5573, the Discover card no. 0735, the Old Navy credit card no. 3938,
and the RV deficiency.
9. The Court finds there are no sanctions or contempt on either
party.
Wife filed a motion to alter or amend judgment which was denied. Wife filed a timely
appeal to this Court.
Discussion
Although not stated exactly as such, Wife raises four issues on appeal: 1)
whether the Trial Court erred in valuing the former marital residence and the equity
therein; 2) whether the Trial Court failed to equitably divide the parties’ assets and
liabilities; 3) whether the Trial Court erred in denying Wife’s motion for contempt
against Husband for his failing to comply with the Trial Court’s order; and, 4) whether
the Trial Court erred in adding $500 per month in alleged rental income to Wife’s income
for child support purposes. Husband raises the following additional issue on appeal:
whether Husband is entitled to his reasonable attorney’s fees in defending this appeal.
We first address whether the Trial Court erred in valuing the former marital
residence and the equity therein. Wife asserts that the marital residence should be valued
at $177,000. Husband asserted that the marital residence should be valued at $190,000.
The Trial Court selected $185,000 as the value of the marital residence. Wife argues that
because the house went unsold on an offer of $176,000, the Trial Court erred in arriving
at the higher figure.
In Neamtu v. Neamtu, No. M2008-00160-COA-R3-CV, 2009 WL 152540
(Tenn. Ct. App. Jan. 21, 2009), no appl. perm. appeal filed, this Court discussed our
standard of review with respect to issues surrounding the valuation of marital assets. We
stated:
-4-
Once property has been classified as marital property, the court
should place a reasonable value on property that is subject to division.
Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL
21077990, at * 11 (Tenn. Ct. App. May 13, 2003). The parties have the
burden to provide competent valuation evidence. Kinard v. Kinard, 986
S.W.2d 220, 231 (Tenn. Ct. App. 1998). When valuation evidence is
conflicting, the court may place a value on the property that is within the
range of the values presented. Watters v. Watters, 959 S.W.2d 585, 589
(Tenn. Ct. App. 1997). Decisions regarding the value of marital property
are questions of fact, Kinard, 986 S.W.2d at 231; thus, they are not second-
guessed on appeal unless they are not supported by a preponderance of the
evidence. Smith, 93 S.W.3d at 875.
Neamtu, 2009 WL 152540, at *4.
The Trial Court chose a figure within the high and low bounds of evidence
presented by the parties. We are disinclined to tweak a valuation absent some compelling
contrary evidence in the record. While Wife’s argument about the specific difficulties the
parties have faced in selling the marital residence has a certain logic, it is, in our view, an
insufficient basis to overturn the Trial Court’s valuation, a valuation that fell within the
range of evidence presented by the parties. As the evidence does not preponderate
against the Trial Court’s finding, the Trial Court did not commit reversible error in
arriving at a value of $185,000 for the marital residence.
We next address whether the Trial Court failed to equitably divide the
parties’ assets and liabilities. Wife argues that the Trial Court failed to take into account
Husband’s dissipation of over $30,000 in assets. According to Wife, she should have
received an additional $30,000 in assets to equalize the division. Regarding their debts,
Wife argues that the Trial Court should have equally divided the $22,710 in joint debts
owed by the parties before Husband left the marital residence, with each party then
paying their respective debts incurred by them after the separation.
Tennessee law sets out a number of factors for trial courts to consider in
making an equitable division of marital property, including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills,
employability, earning capacity, estate, financial liabilities and financial
needs of each of the parties;
-5-
(3) The tangible or intangible contribution by one (1) party to the
education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital
assets and income;
(5)(A) The contribution of each party to the acquisition,
preservation, appreciation, depreciation or dissipation of the marital or
separate property, including the contribution of a party to the marriage as
homemaker, wage earner or parent, with the contribution of a party as
homemaker or wage earner to be given the same weight if each party has
fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets
means wasteful expenditures which reduce the marital property available
for equitable distributions and which are made for a purpose contrary to the
marriage either before or after a complaint for divorce or legal separation
has been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the
division of property is to become effective;
(9) The tax consequences to each party, costs associated with the
reasonably foreseeable sale of the asset, and other reasonably foreseeable
expenses associated with the asset;
(10) The amount of social security benefits available to each spouse;
and
(11) Such other factors as are necessary to consider the equities
between the parties.
Tenn. Code Ann. § 36-4-121(c) (2014).
-6-
A trial court has wide discretion in dividing the interest of the parties in
marital property. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991). As
noted by this Court in King v. King, when dividing marital property:
The trial court’s goal in every divorce case is to divide the parties’ marital
estate in a just and equitable manner. The division of the estate is not
rendered inequitable simply because it is not mathematically equal, Cohen
v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d
424, 427 (Tenn. 1988), or because each party did not receive a share of
every item of marital property. Brown v. Brown, 913 S.W.2d [163] at 168.
. . . In the final analysis, the justness of a particular division of the marital
property and allocation of marital debt depends on its final results. See
Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).
King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (quoting Roseberry v.
Roseberry, No. 03A01-9706-CH-00237, 1998 WL 47944, at *4 (Tenn. Ct. App. Feb. 9,
1998), no appl. perm. appeal filed).
Initially, we note that the Trial Court found that both parties dissipated
marital assets, and the evidence does not preponderate against this finding. Wife argues
that the Trial Court somehow did not take into account Husband’s acts of dissipation
when dividing the marital assets and liabilities. However, from the Trial Court’s order
quoted above, it is apparent that the Trial Court did, in fact, take the spending behavior of
both parties into consideration. Neither party was innocent in terms of dissipating marital
assets.
Another relevant factor as to this issue is that of the parties’ pensions. Both
parties agreed they would take their own pensions from their respective employers. It
was agreed that Wife’s pension would be around $500 per month greater than Husband’s
National Guard pension. Regarding other sources of retirement income, Husband will
draw his CSX Railroad pension in lieu of Social Security. Wife acknowledged this fact
in her testimony, stating: “Right. And I have Social Security, so we’re even.”
The parties are roughly equal in terms of the statutory factors. These are
educated parties in their mid-forties with roughly equal incomes. The record reflects that
Wife will draw a somewhat larger pension than Husband’s National Guard pension upon
their retirements. These facts all tend to support the Trial Court’s division of the marital
estate as being equitable. A trial court has broad discretion in dividing the net marital
estate, and we are disinclined to second-guess the Trial Court. Taking all relevant factors
into consideration, and aware of the Trial Court’s discretion in such matters, we affirm
the Trial Court in its division of the marital assets and liabilities.
-7-
We next address whether the Trial Court erred in denying Wife’s motion
for contempt against Husband for his failing to comply with the Trial Court’s order.
Wife asserts that only after she had filed a motion for contempt did Husband pay his part
of their daughter’s private school tuition as ordered. According to Wife, she should be
awarded her attorney’s fees for having to prompt Husband to act. Nevertheless, Wife
acknowledges that these matters were resolved, stating in her brief:
On September 12, 2013, after he still had not paid his portion [of tuition],
Wife was forced to file a Motion for Contempt. His attorney told him to
pay and then he paid. Wife is entitled to her attorney’s fees for having to
file the Motion to have Husband comply with the Court order to pay
support owed for the children.
The Trial Court held in its final order that neither party was in contempt.
“Determinations regarding contempt lie within the trial court’s sound discretion and are
final, absent any plain abuse of that discretion.” Hill v. Hill, 152 S.W.3d 543, 548 (Tenn.
Ct. App. 2004). The Trial Court decided not to punish Husband with contempt for his
tardiness in paying his tuition obligation, and, in our view, this was an appropriate
exercise of discretion by the Trial Court. We find no reversible error in the Trial Court’s
decision not to find Husband in contempt.
We next address whether the Trial Court erred in adding $500 per month in
alleged rental income to Wife’s income for child support purposes. Husband alleges that
Wife receives rent from her sister, who lives with Wife. However, Wife testified
unequivocally at trial that she receives no rent from her sister due to her sister’s health
problems. On appeal, Husband cites to no contrary proof in the record supporting the
proposition that Wife receives $500 per month in rental income from her sister. Instead,
Husband merely cites to the legal standard by which this Court extends strong deference
to the credibility determinations of trial courts. As this Court explained in Richardson v.
Spanos:
Prior to the adoption of the Child Support Guidelines, trial courts
had wide discretion in matters relating to child custody and support.
Hopkins v. Hopkins, 152 S.W.3d 447, 452 (Tenn. 2004) (Barker, J.,
dissenting). Their discretion was guided only by broad equitable principles
and rules which took into consideration the condition and means of each
parent. Brooks v. Brooks, 166 Tenn. 255, 257, 61 S.W.2d 654, 654 (1933).
However, the adoption of the Child Support Guidelines has limited the
courts’ discretion substantially, and decisions regarding child support must
be made within the strictures of the Child Support Guidelines. Berryhill v.
-8-
Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000); Jones v. Jones, 930 S.W.2d 541,
545 (Tenn. 1996); Smith v. Smith, 165 S.W.3d 279, 282 (Tenn. Ct. App.
2004).
***
Because child support decisions retain an element of discretion, we
review them using the deferential “abuse of discretion” standard. This
standard is a review-constraining standard of review that calls for less
intense appellate review and, therefore, less likelihood that the trial court’s
decision will be reversed. State ex rel Jones v. Looper, 86 S.W.3d 189, 193
(Tenn. Ct. App. 2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23
(Tenn. Ct. App. 1999). Appellate courts do not have the latitude to
substitute their discretion for that of the trial court. Henry v. Goins, 104
S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaatrude, 21
S.W.3d 244, 248 (Tenn. Ct. App. 2000). Thus, a trial court’s discretionary
decision will be upheld as long as it is not clearly unreasonable, Bogan v.
Bogan, 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can
disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).
Discretionary decisions must, however, take the applicable law and the
relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
1996). Accordingly, a trial court will be found to have “abused its
discretion” when it applies an incorrect legal standard, reaches a decision
that is illogical, bases its decision on a clearly erroneous assessment of the
evidence, or employs reasoning that causes an injustice to the complaining
party. Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v.
Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); Overstreet v. Shoney’s, Inc.,
4 S.W.3d 694, 709 (Tenn. Ct. App. 1999).
Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005).
This Court does indeed extend strong deference to trial courts’ credibility
determinations, but here we are confronted with a specific finding of fact for which there
is no evidence in the record which we can discern. That the Trial Court did not believe
Wife when she denied receiving rent from her sister is not proof that Wife received $500
per month in rent from her sister. The mere allegation by Husband does not establish this
as fact. Therefore, we reverse the Trial Court in its adding $500 per month in rental
income to Wife’s income for child support purposes. Our holding on this issue requires
that this case be remanded to the Trial Court for a new calculation of child support, this
-9-
time excluding the $500 per month in alleged rental income from Wife’s sister for which
there simply is no competent evidence in the record.
The final issue we address is Husband’s issue of whether he is entitled to
his reasonable attorney’s fees in defending this appeal. Husband’s rationale on this issue
is that since Wife appealed an almost equal division of assets and liabilities, Husband is
entitled to reasonable attorney’s fees in defending such an unjustified appeal. We find
this argument unavailing, especially in light of the fact that Wife prevailed on one of her
issues. We decline to award Husband his attorney’s fees.
In summary, we reverse the Trial Court in its adding $500 in monthly rental
income to Wife’s income for child support purposes as the evidence does not support this
finding. We remand this case to the Trial Court for a new child support calculation. We
otherwise affirm the judgment of the Trial Court. We decline to award attorney’s fees on
appeal.
Conclusion
The judgment of the Trial Court is affirmed, in part, and, reversed, in part,
and this cause is remanded to the Trial Court for collection of the costs below, and for
further proceedings consistent with this Opinion. The costs on appeal are assessed
equally one-half against the Appellant, Lisa Culver, and her surety, if any; and, the
Appellee, Michael Todd Culver.
_________________________________
D. MICHAEL SWINEY, JUDGE
-10-