Kermit George Parker v. Sherry Elizabeth Parker ( 2019 )

04/09/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 7, 2019
KERMIT GEORGE PARKER V. SHERRY ELIZABETH PARKER
Appeal from the Circuit Court for Bradley County
No. V-14-849 J. Michael Sharp, Judge
No. E2018-00643-COA-R3-CV
A husband and wife were divorced after being married for nineteen years. The trial court
divided the marital estate and awarded the wife alimony in futuro. The husband
appealed, claiming the trial court erred in classifying a camper as marital property and in
awarding the wife long-term spousal support. We affirm the trial court’s judgment and
award the wife her reasonable attorney’s fees incurred on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and JOHN W. MCCLARTY, J., joined.
Howard Luxon Upchurch, Pikeville, Tennessee, for the appellant, Kermit George Parker.
Joshua H. Jenne, Cleveland, Tennessee, for the appellee, Sherry Elizabeth Parker.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Sherry Elizabeth Parker (“Wife”) and Kermit George Parker (“Husband”) were
married for over seventeen years when Wife moved out of the marital residence in the
fall of 2014 to live with relatives. Husband filed a complaint for divorce in December
2014, citing irreconcilable differences. Wife answered Husband’s complaint and
counter-claimed for divorce on the same grounds. Wife sought alimony and an award of
her attorney’s fees. When Wife filed her answer and counter-complaint, she also filed a
motion seeking alimony pendente lite, which the trial court granted in the amount of $100
per month. No children were born of the marriage.
The parties tried their case on September 2, 2016, and the trial court issued its
Final Order on December 14, 2016. The court found that Wife was physically disabled
and suffered from mental illness. Her physical impairments included high blood
pressure, back problems due to a spinal fusion procedure that she underwent as a child,
and Hepatitis C. Her mental illness consisted of bipolar disorder with recurring treatment
for depression and anxiety. Husband testified that before Wife moved out of the marital
home, she required a full-time caretaker and that he stopped working to care for her. He
explained that the social security administration would not disburse social security
disability benefits to Wife if he was employed.
Wife testified, and the trial court found, that Husband was very controlling of
Wife while they lived together and that Husband acted “in an inappropriate manner”
towards Wife. The court determined that Wife was entitled to a divorce based on
Husband’s inappropriate marital conduct. The court then divided the marital property,
awarded Wife alimony in futuro at the rate of $500 per month, and awarded Wife her
attorney’s fees. Husband appeals, arguing that the trial court erred by (1) classifying the
parties’ Sunnybrook fifth wheel camper as marital property and assigning it an excessive
value and (2) awarding Wife alimony in futuro. Wife seeks an award of the attorney’s
fees she incurred on appeal.
II. ANALYSIS
A. Sunnybrook Fifth Wheel Camper
1. Classification as Marital Property
“Marital property” is defined as all real and personal property acquired by either
or both spouses during the marriage that was owned by either or both spouses as of the
date when the complaint for divorce was filed. Tenn. Code Ann. § 36-4-121(b)(1)(A). In
divorce actions, the trial court is tasked with equitably dividing the marital property
between the parties “without regard to marital fault in proportions as the court deems
just.” Id. § 36-4-121(a)(1); see also Larsen-Ball v. Ball, 301 S.W.3d 228, 231 (Tenn.
2010). The classification of property as marital is “inherently factual” and will be
reviewed in accordance with Tenn. R. App. P. 13(d). Owens v. Owens, 241 S.W.3d 478,
485 (Tenn. Ct. App. 2007). Tennessee Rule of Appellate Procedure 13(d) directs
appellate courts to review a trial court’s findings of fact “de novo upon the record of the
trial court, accompanied by a presumption of correctness of the finding, unless the
preponderance of the evidence is otherwise.”
Husband contends the Sunnybrook fifth wheel camper was not part of the marital
estate, subject to an equitable division, when he filed his complaint for divorce in 2014.
According to Husband, he and Wife purchased the Sunnybrook fifth wheel camper in
2007. He testified that he later transferred the camper to his brother because Wife was
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not eligible to receive social security disability benefits if the parties owned too many
assets:
I had to stop work. Well, she was already in pretty bad shape as far as
mentally and remembering what she was trying to do. . . . I had to leave
work. We had the old camper. We had to get rid of the old camper because
SSI, you know and the Judge probably knows too, you cannot have stuff
like that for her to get SSI. So I give it to my brother. It was his. She
signed off on the old title and I did and it’s gone.
Husband testified that he never transferred the title of the camper to his brother because it
was not necessary to do so if the camper remained in Tennessee. Husband also testified
that the camper was no longer on his and Wife’s property. When asked how long it had
been since the camper was located on their property, Husband replied: “I don’t know.
Few years now. Quite a few years.”
In contrast to Husband’s testimony, Wife testified that the fifth wheel camper was
still parked in the yard of the marital home when she was there in 2015 to collect some of
her personal belongings and that she did not sign anything authorizing the transfer of the
camper to anyone else.
Q: When was the last time you saw the Sunnybrook camper or the camper
you-all most recently owned?
A: It was [there] when we picked up my stuff at the house.
Q: During the pendency of this case?
A: Yes.
Q: Do you recall ever signing any title or authorizing any transfer or gift of
that camper to anybody?
A: No.
Q: You heard your husband’s testimony that that camper was given to his
brother, I believe. Have you heard that before today?
A: Not before today, no.
Wife’s aunt identified photographs showing the camper outside the marital home in 2015
and testified that the camper was parked near the marital home when Wife went there to
get some of her things in 2015.
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Documentary evidence introduced during the trial showed that the fifth wheel
camper was registered in Husband and Wife’s name as of July 27, 2016, and that Donnie
Brannon, who is unaffiliated with this case, registered the camper on August 5, 2016. No
evidence was introduced regarding the price Mr. Brannon may have paid for the camper
or the circumstances surrounding how Mr. Brannon came to possess the camper.
The trial court did not find Husband’s testimony about the Sunnybrook camper
credible and found that the camper was, in fact, marital property. According to the trial
court:
Exhibit #21 shows a picture of the Sunnybrook Camper still located
at the parties’ marital residence on the date and the time that the wife and
her relative, Melba Wyatt, went to retrieve some of her personal belongings
and/or possessions during March of 2015.
[Husband] testified that he “gave” the camper to his brother several
years ago. In response to questions by [Wife]’s counsel, he testified that the
Sunnybrook camper was given in 2009 or about that time to his brother.
The court questioned [Husband] about this “gift,” and he testified that it
was his belief that the parties continued to own the camper until
approximately late 2012. Ultimately, [Husband] testified that there was no
value in the marital estate from the camper, since it had been gifted away
by him. When questioned concerning why the Sunnybrook camper
remained at the parties’ marital residence even up through and including the
time this divorce case was pending, [Husband] had no credible explanation.
Ultimately, the court received trial exhibit #9 showing that the Sunnybrook
camper was sold and/or transferred on July 27, 2016, which the court notes
was less than two months prior to the date of this final hearing. Exhibit #9
shows that the Sunnybrook camper was then registered in the name of
Donnie Brannon whom [Husband] described to be the owner. [Husband]
had no explanation why the title transfer in July of 2016 was from himself
and [Wife] to Mr. Brannon, as opposed to being a transfer from his brother,
whom he alleged he and [Wife] gave the camper to many years ago. The
court finds [Husband]’s testimony not credible regarding this Sunnybrook
Camper. In fact, the court finds [Husband]’s testimony to be completely
incredible and troubling. The court finds a great deal of [Husband]’s
testimony on many topics to be incredible.
“When it comes to live, in-court witnesses, appellate courts should afford trial
courts considerable deference when reviewing issues that hinge on the witnesses’
credibility because trial courts are ‘uniquely positioned to observe the demeanor and
conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting State
v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)); see also Induction Techs., Inc. v. Justus,
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295 S.W.3d 264, 266 (Tenn. Ct. App. 2008). As we explained in Bowman v. Bowman,
836 S.W.2d 563, 567 (Tenn. Ct. App. 1991), “[t]his Court [of Appeals] does not pass on
the credibility of witnesses.” Accordingly, an appellate court ‘“will not re-evaluate a trial
judge’s assessment of witness credibility absent clear and convincing evidence to the
contrary.’” Kelly, 445 S.W.3d at 692 (quoting Wells v. Tenn. Bd. of Regents, 9 S.W.3d
779, 783 (Tenn. 1999)); see also Bowman, 836 S.W.2d at 566 (explaining that a trial
judge’s finding based on witness credibility “will not be reversed unless there is found in
the record concrete and convincing evidence, other than the oral testimony of the
witnesses, which contradicts the trial court’s findings”).
The trial court’s finding that Husband and Wife owned the Sunnybrook fifth wheel
camper when the divorce action was initiated is supported by Wife’s testimony, her
aunt’s testimony, photographs, and documentary evidence. Husband points to nothing in
the record other than his own testimony that contradicts the trial court’s finding. Based
on the evidence in the record together with the trial court’s finding that Husband was not
credible, we affirm the trial court’s classification of the fifth wheel camper as marital
property.
2. Valuation
Husband also challenges the trial court’s valuation of the fifth wheel camper. In
its Final Order, the trial court awarded Wife a judgment for her interest in the camper,
which was “one-half the value of the camper on the date of its transfer in July of 2016.”
The court determined that the value would be the Kelley Blue Book value, “which shall
be provided to the court as a post-trial exhibit.” The record does not include any post-
trial exhibits reflecting the Blue Book value of the camper. However, the trial court
issued a Judgment and Final Order in March 2018 that assigned the value of $14,612.50
to the camper based on “the late filed exhibits presented at the request of the Court” and
the “average of the proposals from Plaintiff and Defendant.”
The record shows that the camper dates from 2001 and that the parties paid
$18,000 for it in 2007. Husband testified that the camper did not have much value and
that “You can’t get nothing for them.” He testified that he had recently seen a similar
camper for sale for $2,000. Wife valued the camper at $20,000.
When the parties present conflicting evidence of a property’s value, the trial court
“may place a value on the property that is within the range of the values presented.”
Head v. Head, No. M2009-01351-COA-R3-CV, 2010 WL 3853291, at *3 (Tenn. Ct.
App. Sept. 30, 2010); see also Cole v. Cole, No. M2006-00425-COA-R3-CV, 2008 WL
1891436, at *2 (Tenn. Ct. App. Apr. 29, 2008). Tennessee Rule of Evidence 701(b)
states that “[a] witness may testify to the value of the witness’s own property or
services.” Despite the fact that the record does not include the Kelley Blue Book value of
the camper as of July 2016, the value the court assigned was within the range of the
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values presented by the parties.1 Thus, we affirm the trial court’s valuation of the
Sunnybrook fifth wheel camper at $14,612.50.
B. Alimony in Futuro
Husband next asserts that the trial court abused its discretion in awarding Wife
alimony in futuro. Tennessee recognizes four types of spousal support: rehabilitative
alimony, transitional alimony, alimony in futuro, and alimony in solido. Tenn. Code
Ann. § 36-5-121(d). The legislature has indicated its preference that rehabilitative
alimony be awarded when appropriate:
It is the intent of the general assembly that a spouse, who is economically
disadvantaged relative to the other spouse, be rehabilitated, whenever
possible, by the granting of an order for payment of rehabilitative alimony.
To be rehabilitated means to achieve, with reasonable effort, an earning
capacity that will permit the economically disadvantaged spouse’s standard
of living after the divorce to be reasonably comparable to the standard of
living enjoyed during the marriage, or to the post-divorce standard of living
expected to be available to the other spouse, considering the relevant
statutory factors and the equities between the parties.
Tenn. Code Ann. § 36-5-121(d)(2). Where rehabilitation is not feasible and one spouse is
economically disadvantaged when compared with the other spouse, however, “the court
may grant an order for payment of support and maintenance on a long-term basis or until
death or remarriage of the recipient . . . .” Id. § 36-5-121(d)(3); see also id. § 36-5-
121(d)(4) (providing that award of alimony in futuro may be made “where rehabilitation
is not feasible”).
“[T]rial courts have broad discretion to determine whether spousal support is
needed and, if so, the nature, amount, and duration of the award.” Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). The Gonsewski Court described the
standard of review appellate courts apply to a trial court’s award of spousal support:
[A] trial court’s decision regarding spousal support is factually driven and
involves the careful balancing of many factors. Kinard v. Kinard, 986
S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew[ v. Burlew], 40
S.W.3d [465,] 470 [Tenn. 2001]; Robertson v. Robertson, 76 S.W.3d 337,
340–41 (Tenn. 2002). As a result, “[a]ppellate courts are generally
disinclined to second-guess a trial judge’s spousal support decision.”
Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in
1
Husband challenges the value the court assigned to the camper, but he does not challenge Wife’s
entitlement to one-half of its value.
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reviewing an award of spousal support is to determine whether the trial
court applied the correct legal standard and reached a decision that is not
clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220
(Tenn. 2006). Appellate courts decline to second-guess a trial court’s
decision absent an abuse of discretion. Robertson, 76 S.W.3d at 343. 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. 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). This standard does not permit an appellate court to
substitute its judgment for that of the trial court, but “‘reflects an awareness
that the decision being reviewed involved a choice among several
acceptable alternatives,’ and thus ‘envisions a less rigorous review of the
lower court’s decision and a decreased likelihood that the decision will be
reversed on appeal.’” Henderson, 318 S.W.3d at 335 (quoting Lee Medical,
Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). Consequently, when
reviewing a discretionary decision by the trial court, such as an alimony
determination, the appellate court should presume that the decision is
correct and should review the evidence in the light most favorable to the
decision. Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335.
Id. at 105-06 (footnote omitted).
A trial court is directed to consider the following factors in determining whether to
award the economically disadvantaged spouse 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;
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(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;
(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). The most important factors a court is to consider include
the need of the spouse seeking support and the ability of the obligor spouse to pay the
support. Bratton v. Bratton, 136 S.W.3d 595, 604 (Tenn. 2004); see also Oakes v. Oakes,
235 S.W.3d 152, 160 (Tenn. Ct. App. 2007).
Wife was forty-four years old at the time of trial and she was unable to work due
to her physical and mental condition. Wife received disability payments in the amount of
$733 per month, and she introduced an income and expense statement reflecting expenses
in the amount of $1,412 per month. The trial court found that Wife “has lived, and
continues to live, very frugally” and that she “has a definite need for alimony [that] will
continue for the remainder of [her] life.” Husband worked as a mechanic at Santek
Environmental Services and earned about $3,575 per month at the time of trial. He
introduced an income and expense statement reflecting expenses of $2,331.98 per month.
The court based its decision to award Wife alimony in futuro on Wife’s disability, age,
education level,2 and assets. In its decision, the court wrote:
The court finds that [Wife] has very little, if any, real earning capacity, nor
will she have any real earning capacity into the future. The court finds that
2
Wife testified that she acquired an accounting certificate and a banking certificate following high school.
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given her age, mental health, as well as physical health, it is unlikely that
her economic status as far as earnings will change much, if any, in the
future. On the other hand, the court finds that [Husband] is gainfully
employed in a full time position, apparently relatively skilled in his position
as a mechanic, and his job prospects in the future are good. While the court
understands that [Husband] may have some health related concerns or
questions, the court finds that there is no credible evidence before the court
that he has any health issue that will hinder his ability to work full time into
the future.
Husband contends that the trial court should have awarded Wife rehabilitative
alimony rather than alimony in futuro. He bases his argument on Wife’s testimony that
she would like to go back to school and get a job that she can handle. Wife testified at
trial that she would like to work in a veterinarian’s or doctor’s office. However, the
evidence shows that Husband began caring for Wife full-time starting in 2012 and that
her mental decline began sometime around 2000. Although Wife testified that she has
been feeling better and has been able to do more for herself since she moved out of the
marital home, no evidence was introduced suggesting that Wife was able, as of the time
of the trial, either to return to school or obtain employment. In addition, no evidence was
introduced suggesting that she would be in a position to do so in the future.
Husband fails to point to any evidence showing that Wife will be able to achieve a
standard of living comparable to the parties’ standard of living during the marriage or to
the post-divorce standard of living expected to be available to Husband in the absence of
long-term monthly support from Husband. See Gonsewski, 350 S.W.3d at 111
(explaining that alimony in futuro is intended to provide long-term support where the
obligee spouse is economically disadvantaged relative to the obligor spouse and where
rehabilitation is not feasible) (citing Tenn. Code Ann. § 36-5-121(f)(1)). We conclude
that Husband failed to show that the trial court abused its discretion in awarding Wife
alimony in futuro. As a result, we affirm the trial court’s award to Wife of alimony in
futuro in the amount of $500 per month.
C. Wife’s Attorney’s Fees
Wife seeks an award of the attorney’s fees she has incurred in defending
Husband’s appeal. Tennessee Code Annotated 36-5-103(c) grants this Court discretion to
award Wife the fees she has incurred on appeal. The version of this statute in effect when
this case was tried provided:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
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suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
Tenn. Code Ann. § 36-5-103(c) (2016). This statute has been interpreted to apply to
cases like this, where an alimony recipient is awarded his or her attorney’s fees when
“forced to defend an action to reduce or terminate that alimony.” Evans v. Evans, No.
M2002-02947-COA-R3-CV, 2004 WL 1882586, at *13 (Tenn. Ct. App. Aug. 23, 2004);
see also Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017); Richards v.
Richards, No. M2003-02449-COA-R3-CV, 2005 WL 396373, at *13-14 (Tenn. Ct. App.
Feb. 17, 2005).
As the Supreme Court explained in Eberbach v. Eberbach, the prevailing party is
not entitled to an award of his or her fees under the statute; instead, the Court of Appeals
is to exercise its discretion to determine whether an award of attorney’s fees is
appropriate in a particular case. Eberbach, 535 S.W.3d at 477. We hereby exercise our
discretion in this case to award Wife the reasonable fees she has incurred in defending
Husband’s appeal. She is the prevailing party on appeal and should not be required to
use her limited resources to pay for the defense of the trial court’s award to her of either
the one-half interest in the fifth wheel camper or long-term spousal support.
III. CONCLUSION
The judgment of the trial court is affirmed in all respects, and this matter is
remanded for the purpose of determining the amount of reasonable attorney’s fees Wife
incurred on appeal, which amount the trial court shall award to Wife. Costs of appeal
shall be assessed against the appellant, Kermit George Parker, for which execution may
issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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