Nancy Olivieri v. Paul Oliveri ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________________________________________
NANCY WHITELEY OLIVIERI, Shelby Circuit No. 147189-5 R.D.
C.A. No. 02A01-9512-CV-00282
Plaintiff,
Hon. Kay S. Robilio
v.
PAUL ANTHONY OLIVIERI,
Defendant.
AMY J. AMUNDSEN, Memphis, Attorney for Plaintiff.
FILED
May 16, 1997
DEBORAH L. PAGAN, Memphis, Attorney for Defendant.
Cecil Crowson, Jr.
AFFIRMED AND REMANDED Appellate C ourt Clerk
Opinion filed:
______________________________________________________________________________
MEMORANDUM OPINION1
TOMLIN, Sr. J.
This is a domestic relations case emanating from the Circuit Court of Shelby
County. Wife, Nancy Whiteley Olivieri, was awarded a divorce on the grounds of
inappropriate marital conduct. The trial court divided the marital property, marital debt
and ordered Husband, Paul Anthony Olivieri, to pay Wife’s attorney fees. Husband has
appealed, raising five issues for this court to consider: (1) Whether the trial court had
subject matter jurisdiction; (2) Was there sufficient proof to grant Wife a divorce on the
grounds of inappropriate marital conduct; (3) Whether the trial court erred in ordering
Husband to pay Wife’s attorney fees; (4) Whether the trial court erred in the amount of
attorney fees aw arded; and (5) Whether the trial court erred in lim iting Husband’s
ability to question W ife’s credibility. For the reasons hereinafter stated, we affirm.
This is the second marriage for both parties. After meeting one another in
Houston, Texas, they were married in May, 1992 following a short, long-distance
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Rule 10(b) (Court of Appeals). MEMORANDUM OPINION. The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify
the actions of the trial court by memorandum opinion when a formal opinion would
have no precedential value. When a case is decided by memorandum opinion
it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall
not be cited or relied on for any reason in a subsequent unrelated case.
courtship. The parties lived apart some six m onths following the marriage while
Husband continued to work in Houston. He then moved to Memphis where he moved
into Wife’s hom e with her two teenage children.
Wife had been previously married and had been aw arded over $600,000.00 in
separate property at the time of her divorce. Husband brought little assets into the
marriage, other than a personal property net worth of som e $8,000.00. The record
reflects that Husband was unable to find a steady full-time job and supplem ented his
income with various part-tim e consulting projects. Wife is a speech pathologist.
During the three years of marriage Wife’s annual earnings were $13,000.00, $18,000.00
and $40,000.00 respectively. The parties were married for little more than three years,
but resided together for only twenty-three months.
To characterize the parties relationship during the course of the divorce
proceedings as hostile would be an understatement. At least thirteen motions or
petitions and m any post-trial petitions were filed during the course of the divorce. In
addition to awarding Wife the divorce, the trial court awarded her the marital residence,
all the couples’ personal property, the parties’ marital debt and alimony in the form of
attorney fees and expenses in the amount of $15,007.50. Husband was enjoined from
any physical contact with Wife or her property.
I. Subject Matter Jurisdiction
Husband contends that the trial court never had subject matter jurisdiction due to
failure of W ife to file a sworn com plaint for divorce, in violation of T.C.A. § 36-4-107.
While Wife admits that she did not sign the original petition for divorce, the record
reflects that she did subsequently file a Motion to Amend Com plaint which had
attached an affidavit signed by W ife. The trial court granted W ife’s motion to amend.
Husband’s position is further weakened by the fact that he himself filed a counter-
complaint against Wife asking the court to grant him a divorce. This issue is without
merit.
II. Lack of Grounds for Divorce.
It is Husband’s contention that Wife failed to prove grounds upon which a
divorce could be granted. The record reflects that Husband adm itted that he told his
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Wife that he hated her. In addition it is filled with evidence from various witnesses
establishing the negative and destructive behavior that Husband exhibited toward W ife
and her children. The trial court observed the testimony of the parties at the hearing
below . This issue is also without m erit.
III. Attorney Fees.
Husband contends that the trial court was in error in awarding Wife attorney fees
in the amount of $15,000.00. W ithout a show ing of an abuse of discretion, this court
will not interfere with the trial court’s decision to aw ard attorney fees. Threadgill v.
Threadgill, 740 S.W .2d 419, 426 (Tenn. A pp. 1987). In making the award, the
trial court clearly stated that the reasoning behind the award of attorney fees centered
on H usband’s dilatory tactics which increased the costs of the divorce proceedings.
The record bears this out. This issue is also without m erit. The court wishes to m ake it
clear that the attorney fee issue embraces both the awarding of attorney fees themselves
as well as the amount of attorney fees awarded. The trial court in that connection found
that Husband possessed the ability to pay an alim ony award such as this and found him
to be in essence under-em ployed. This issue is without m erit.
IV. The Trial Court’s Limitations on Husband’s Cross-examination.
Lastly, Husband contends that the trial court did not give him ample opportunity
to attack Wife’s credibility by cross-examination to the extent that he— Husband— felt
necessary. The record reflects that the trial court did seek to balance the time on cross-
examination. There were several exchanges with the court wherein it appeared that
Husband’s counsel was a bit contentious. Nonetheless, even if the presentation of proof
had been limited, and we do not say that it was, Husband has failed to preserve the
record for this court to consider what had been prevented from coming into evidence by
making a tender of proof, thereby creating a transcript of the allegedly omitted
testimony. Without this offer of proof this court’s hands are tied in considering this
issue on its merits.
Lastly, W ife requests that this court find the appeal to be frivolous, and award
her additional attorney fees and costs to compensate her attorney for representation on
appeal. We do find this appeal to be frivolous and are of the opinion that W ife is
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entitled to additional attorney fees in connection with the appeal. To determine the
amounts that should be awarded, this cause is remanded to the Circuit Court of Shelby
County for further proceedings pursuant to the provisions of T.C.A. § 27-1-122.
The judgment of the trial court is affirmed in all respects. Costs in this cause on
appeal are taxed to Husband, for which execution m ay issue if necessary.
________________________________________
TOMLIN, Sr. J.
________________________________________
CRAWFORD, P. J. W.S. (CONCURS)
________________________________________
LILLARD, J. (CONCURS)
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