Tyrone Sterling v. Lolita Williams ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 10, 2002
TYRONE STERLING v. LOLITA R. (STERLING) WILLIAMS
Appeal from the Chancery Court for Montgomery County
No. 99-04-0091 Michael R. Jones, Judge
No. M2002-00352-COA-R3-CV - Filed January 28, 2003
The Chancery Court of Montgomery County awarded Tyrone Sterling a divorce from Lolita R.
Sterling and custody of the parties’ minor child. Ms. Sterling asserts on appeal that the division of
the marital property violated the automatic stay issued in her bankruptcy proceeding, and that the
court erred in granting Mr. Sterling the divorce and custody of the child. We affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , joined.
Roland Robert Lenard, Clarksville, Tennessee, for the appellant, Lolita R. (Sterling) Williams.
Sheri S. Phillips, Clarksville, Tennessee, for the appellee, Tyrone Sterling.
OPINION
I.
The parties married on March 31, 1988 and the wife entered the U.S. Army a month later.
Their only child was born on November 28, 1990 while the mother was stationed at Fort Polk,
Louisiana. Ms. Sterling spent five years in Germany and then returned to Fort Campbell, Kentucky.
Mr. Sterling followed Ms. Sterling from post to post, taking care of the child and working at various
jobs in the cities where Ms. Sterling was stationed. After Ms. Sterling returned to Fort Campbell in
1996, the parties acquired a home in Clarksville.
Early in 1999 the parties were suffering through marital problems. After one altercation Ms.
Sterling was arrested and ordered to live on the base and to complete an anger management course.
Mr. Sterling filed a complaint for divorce on April 16, 1999, alleging irreconcilable differences and
inappropriate marital conduct as grounds. Ms. Sterling filed an answer simply denying the
allegations in the complaint.
While the suit was pending Ms. Sterling obtained an ex parte restraining order prohibiting
Mr. Sterling from contacting any of Ms. Sterling’s superiors for the purpose of complaining or
harassing her. When Ms. Sterling stopped the government from paying the mortgage on the house
from her Basic Housing Allowance, Mr. Sterling did contact the base to have the payments restored.
Also while the suit was pending Ms. Sterling filed for bankruptcy. Although she did not file
any pleadings in the trial court to that effect, her attorney mentioned the bankruptcy in his opening
statement at the final hearing. But the only observation he made was, “[s]o it’s not clear to me what,
if anything, Your Honor can do with regard to these issues of alimony and et cetera.”
In its final order the court awarded Mr. Sterling a divorce on the ground of inappropriate
marital conduct. The court also awarded Mr. Sterling forty percent of Ms. Sterling’s military
retirement pay based on twelve years of service (the number of years of the marriage). Mr. Sterling
received the marital home, which Ms. Sterling had disclaimed in her bankruptcy, and the parties
were given joint custody of the child, with primary physical custody given to Mr. Sterling. Ms.
Sterling was ordered to pay $500 per month in child support. The court denied any rehabilitative
support for Mr. Sterling and divided the remaining marital property.
II.
In Ms. Sterling’s first issue on appeal she asserts that the court violated the automatic stay
of the bankruptcy court when it divided the marital assets and awarded Mr. Sterling part of her
retirement pay. Implicit in the argument – although not stated, and no authority is cited for the
proposition – is the idea that any attempt to deal with the bankrupt’s property in violation of the
automatic stay is void. There is abundant authority to that effect. See 9B Am. Jur. 2d Bankruptcy
§ 1756 (1999).
There is, however, authority to the contrary – especially when the debtor unreasonably
withholds notice of the stay or uses the stay unfairly as a shield to avoid an unfavorable result. Id.
And the automatic stay is not absolute; the bankruptcy code itself contains a list of exceptions. See
11 U.S.C. § 362(b). Perhaps the most important exception in a domestic case is the exception for
establishment of paternity or the establishment, modification or collection of alimony, maintenance,
and support.
Under the circumstances of this case, we do not think the appellant has shown that the
divorce decree is void. If the appellant had raised the jurisdictional issue as a defense instead of
simply mentioning it in opening argument, the issue could have been litigated and the various
exceptions to the automatic stay could have been explored. We acknowledge that the subject matter
jurisdiction of the court may be raised at any time, see Tenn. R. Civ. P. 12.08, but under this record
the lack of jurisdiction has not been established.
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III.
Ms. Sterling also insists that she was prejudiced by the trial court’s failure to hold Mr.
Sterling in contempt for contacting an official at the base to reestablish the house payment from Ms.
Sterling’s housing allowance. We fail to see, however, how the failure to find Mr. Sterling in
contempt affected Ms. Sterling’s rights.
But beyond the merits of the argument, we think the record shows that the temporary
restraining order had expired before Mr. Sterling allegedly violated it. The restraining order was
signed by the chancellor on April 28, 2000 and the motion to hold Mr. Sterling in contempt was filed
on November 8, 2000. The allegations in the motion stated that Mr. Sterling had “recently”
contacted Ms. Sterling’s employer.
Tennessee Rule of Civil Procedure 65.03 provides that every restraining order granted
without notice “shall expire by its terms within such time after entry, not to exceed fifteen days . .
. .” Although the order entered did not have that provision, we are convinced that the order expired
fifteen days after April 29, 2000 since there is no indication in the record that the court ever extended
the order.
IV.
Ms. Sterling also complains about the court’s award of the divorce to Mr. Sterling and asserts
that that fact contributed to the loss of custody of the child.
After a review of the record, we find sufficient evidence to establish the ground of
inappropriate marital conduct. Ms. Sterling physically attacked her husband and belittled Mr.
Sterling’s job and his other responsibilities, even though he provided most of the care for the minor
child. She was abusive, course, and demanding, while disclaiming her own responsibilities for the
child when it suited her to do so. The grounds for divorce have been established. See Stanfill v.
Stanfill, 742 S.W.2d 267 (Tenn. Ct. App. 1987); Acree v. Acree, 447 S.W.2d 108 (Tenn. Ct. App.
1969).
V.
Finally, Ms. Sterling comes to the real point to her appeal: the custody of her daughter. But
her argument on this point is almost totally irrelevant. Her one relevant argument asserts that the
court ruled against her because she is a soldier on active duty with the U.S. Army. But the evidence
she cites for this proposition, that the court recited the proof showing that she has to be at physical
training at 6:30 in the morning, reflects a scheduling issue not a career choice issue. It would have
equal weight in a non-military setting.
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We have conducted our own review of the record and find that the trial court performed a
thorough and painstaking analysis of the various factors to be considered before awarding primary
custody to Mr. Sterling. Since a custody determination is ordinarily left to the trial court’s discretion,
Sherrod v. Wix, 849 S.W.2d 780, 784 (Tenn. Ct. App. 1992), the appellant’s burden on appeal is to
show how the trial court abused that discretion. Since the appellant has not attempted to do that in
this case, and we find no abuse of discretion, we affirm the award of primary custody to Mr. Sterling.
The judgment of the lower court is affirmed, and the cause is remanded to the Chancery
Court of Montgomery County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Lolita R. Williams.
_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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