Cole v. Cole ( 1999 )

FILED
November 17, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
KATHERINE DRESCHER COLE, )
)
Plaintiff/Appellee )Appeal No.
) M1999-00933-COA-R3-CV
vs. )
)
Davidson County Circuit
RUSSELL TODD COLE, ) No. 98D-41
)
Defendant/Appellant )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CIRCUIT COURT
FOR DAVIDSON COUNTY
THE HONORABLE MURIEL ROBINSON PRESIDING
ROBERT TODD JACKSON
STEVEN B. MCCLOUD
222 SECOND AVENUE NORTH
SUITE 419
NASHVILLE, TENNESSEE 37201
ATTORNEYS FOR DEFENDANT/APPELLANT
GREGORY D. SMITH
FARRIS, WARFIELD & KANADAY, PLC
424 CHURCH STREET
SUITE 1900
NASHVILLE, TENNESSEE 37219
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ATTORNEY FOR PLAINTIFF/APPELLEE
AFFIRMED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
KOCH, J.
CAIN, J.
OPINION
This case involves an appeal from the trial court’s decision in a divorce which
ended a six year marriage. Mr. Russell Todd Cole (“Husband”) appeals the court’s
order of joint custody of the couple’s two sons, ages five and two, with Ms.
Katherine Drescher Cole (“Wife”) as primary custodian. He also appeals the court
assigning to him the mileage charges on the leased van and the credit card debt, the
award of some property to Wife that he claims as his separate property, and the
court’s failure to assign him the 1998 tax deduction for one of the children. For the
following reasons, we affirm.
I.
An appellate court’s review of the trial court’s findings regarding child
custody, allocation of debt and division of property are de novo on the record,
accompanied by a presumption of correctness. See Nichols v. Nichols, 792 S.W.
2d 713, 716 (Tenn. 1990); Mondelli v. Howard, 780 S.W.2d 769, 772-73 (Tenn.
Ct. App. 1989). Accordingly, unless the evidence preponderates against the trial
court’s findings, we must affirm. See Tenn. R. App. P. 13(d).
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II.
Husband first appeals the trial court’s order of joint custody of the children to
the parties, with Wife as the primary custodian. Testimony before the court
indicated that each parent had various minor shortcomings, but that each parent
loved the children and had provided care and nurturing for them. Husband had also
cared for and played with Wife’s oldest son from a previous marriage. The trial
court found that while Husband had been involved with the children all along, he
became much more involved after Wife announced her intent to divorce him.
The court awarded joint custody with Wife as the primary custodian.
Husband has visitation with the children on alternate weekends, every Wednesday
evening, alternating holidays, and from June 1 through August 15 every summer.
Wife has similar weekend, weeknight and holiday visitation with the children while
they are with their father in the summer.
The court must consider many factors 1 and make a custody determination
based on the best interest of the children. See Tenn. Code Ann. § 36-6-106 (Supp.
1999).
In Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983), this court
established a comparative fitness approach for determining the best interest of a
child. See Bah at 666. “No human being is deemed perfect, hence no human can
be deemed a perfectly fit custodian. Necessarily, therefore, the courts must
determine which of the two or more available custodians is more or less fit than
others.” Id. (quoting Edwards v. Edwards, 501 S.W.2d 283, 290-291 (Tenn. Ct.
App. 1973)).
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In deciding between these two parties, the court heard testimony from each
of them and from family members. The evidence showed that each of the parties
was a capable and loving parent, and that each was less than perfect. The trial court
simply had to choose between two fit parents, and the evidence does not
preponderate against the trial court’s order. We affirm the order of joint custody
with Wife as the primary custodian.
III.
Husband next appeals the court’s assignment of debts to him. The debts
in question are $15,885 for two credit cards, an American Express Optima and a
Visa, and $2,000 for mileage on the leased van which the court awarded to
Husband. Husband argues that the debts were joint debts incurred by, or for the
benefit of, both parties and that Wife has the ability to pay some of the debt. At the
time of the divorce, Husband earned approximately $44,000 per year while Wife
earned approximately $27,000.
Testimony indicated that Husband, a Certified Public Accountant, kept
tight control over the parties’ finances. He retained physical possession of the credit
cards and the credit card statements, even though Wife’s name was on one account,
virtually preventing Wife from using the credit cards or from having any knowledge
concerning how he was using the cards. Husband testified that he had a $2,000
credit card debt before the marriage, but the rest was incurred during the marriage.
He also testified that he had taken several gambling trips with his friends. He was
quite vague about the purposes for the credit card charges. The court asked
Husband to produce records to demonstrate that Wife had made some charges or to
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demonstrate the purpose of the charges, but he did not. The court assigned all of
the debt on the credit cards to Husband stating, “It’s totally absurd to think that one
party has to be penalized if they don’t have any control over the account.”
In light of Husband’s use and custody of the credit cards, it was
appropriate for the trial court to seek the credit card statements to establish that the
credit cards were being used for marital purposes rather than for Husband’s sole
enjoyment. Husband’s failure to produce better evidence concerning the use of the
credit cards gives rise to the presumption that the credit card statements would have
been detrimental to his position. See Cummins v. Brodie, 667 S.W.2d 759, 766
(Tenn. Ct. App. 1983).
Marital debt, like marital property, “should be divided equitably in
accordance with the factors in Tenn. Code. Ann. § 36-4-121(c) and in light of (1)
which party incurred the debt, (2) the purpose of the debt, (3) which party benefitted
from incurring the debt, and (4) which party is better able to repay the debt.” Kinard
v. Kinard, 986 S.W.2d 220, 232 (Tenn. Ct. App. 1998).
The trial court found that Husband was the one who incurred the debt,
and that Wife had no control over the credit cards. Because of Husband’s greater
salary, his tight control over the credit cards, and Wife’s lack of access to the credit
cards and the credit card statements, we cannot say the evidence preponderates
against the court’s assignment of this debt to Husband.
Husband was awarded the van subject to the lease. Marital debts frequently
follow their related assets. See Mondelli, 780 S.W.2d at 773. The $2,000 debt for
the mileage properly followed the van.
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In the final analysis, based on the facts of this case, the manner in which
the trial court divided the marital estate and allocated the marital debt, including the
credit card debt and mileage costs accrued during the marriage, was equitable, and
we affirm the trial court’s disposition.
IV.
Husband next appeals the award of the stereo system, half of the tools and
the kitchen table and chairs to Wife. He claims those items are his separate
property and are therefore not subject to division as marital property. He asserts
that the furniture was a gift from his parents, that he had purchased and paid for the
stereo system before the marriage, and that only a few tools belonged to Wife before
the marriage.
Wife testified that the furniture was a gift to both of them from Husband’s
parents. She also testified that the stereo was purchased with a credit card and that
the debt was paid during the marriage through a consolidation loan. The court heard
no testimony regarding the tools, other than Wife’s testimony that she owned a few
before the marriage.
The trial court is in a better position to weigh and evaluate the credibility of the
witnesses, therefore we give great weight to the trial court's findings on issues
involving the credibility of those witnesses. See Randolph v. Randolph, 937
S.W.2d 815, 819 (Tenn. 1996). The trial court’s findings are accompanied by a
presumption of correctness and we will not overturn that finding unless “the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d).
The evidence does not preponderate against the trial court’s finding that the
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items listed above were marital property. We affirm the division of property.
V.
Husband argues, for the first time on appeal, that the trial court erred in not
allowing him to claim at least one of the children on his 1998 income tax return.
Husband never asked the trial court to make any ruling regarding tax deductions, and
the trial court’s order is silent on the subject.
It has long been the rule that issues not raised in the trial court will not be
entertained on appeal. See Simpson v. Frontier Commercial Credit Union, 810
S.W.2d 147, 153 (Tenn. 1991); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.
1983). Because the court and the parties did not address any issue of tax
deductions below, we decline to address it here.
VI.
For the reasons stated above, we affirm the order of the trial court. This case
is remanded to the trial court for such proceedings as may be necessary. Costs are
taxed to appellant.
________________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
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WILLIAM B. CAIN, JUDGE
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