Tawana S. Wilson v. Timothy L. Wilson ( 2021 )

02/11/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 9, 2020 Session
TAWANA S. WILSON v. TIMOTHY L. WILSON
Appeal from the Circuit Court for Davidson County
No. 17D-1151 Philip E. Smith, Judge
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No. M2019-01275-COA-R3-CV
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A husband never answered his wife’s complaint for divorce, and the trial court entered a
default against him. After an evidentiary hearing, the trial court granted the wife a divorce,
divided the marital estate, and awarded the wife alimony. On appeal, the husband faults
the court for denying his motion to set aside the final decree, for its valuation and division
of the marital estate, and for its alimony award. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Melanie Lane, Jamestown, Tennessee, for the appellant, Timothy L. Wilson.
Lorraine Wade, Nashville, Tennessee, for the appellee, Tawana S. Wilson.
OPINION
I.
A.
In June 2017, Tawana Wilson (“Wife”) filed for divorce from her husband of nearly
sixteen years, Timothy Wilson (“Husband”). As grounds, Wife alleged irreconcilable
differences. But later she amended her complaint to allege Husband’s inappropriate marital
conduct as an additional ground for divorce. Among other relief, Wife asked for spousal
support and an equitable division of the marital assets and liabilities.1
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Wife also asked to be named the primary residential parent of the couple’s child, but the child
Husband did not answer, and just over a year and five months after Wife filed her
amended complaint, she moved for a default judgment and to set the case for a final
hearing. The trial court granted the motion and set an evidentiary hearing at which Wife,
Wife’s friend, and Wife’s mother testified. Husband did not appear at the hearing.
Wife provided the bulk of the testimony. She related Husband’s infidelities and his
physical abuse. Husband lived with Wife in the marital home, but according to Wife,
Husband sometimes stayed elsewhere. Husband never denied his extra-marital affairs to
Wife, and Wife knew that Husband had fathered two children by other women.
Wife also testified concerning the couple’s finances and assets. Wife worked as a
“full service manager” for Metro Nashville Public Schools. She was reluctant to testify to
Husband’s occupation, but she did testify that Husband had served time for drug possession
and that their home had been raided by the police. The court found that Husband was a
drug dealer.
The parties also had rental income. Wife testified about 16 parcels of real property
owned by Husband or by the couple together, 15 of which had been used as rental
properties. During the course of the marriage, Husband transferred nine of the 16
properties by quitclaim deed to his father, friends, and others. Three of the transfers took
place after the filing of the divorce.
In the final decree, the trial court awarded Wife a divorce on the ground of
inappropriate marital conduct. The court then considered the marital estate, which
consisted of real property, debts associated with the real property, bank accounts, and
vehicles, and divided the assets and debts between the parties. On the issue of alimony,
the court found that “rehabilitation is not appropriate” and that Wife “needs more than
transitional support.” Based upon Wife’s need and Husband’s ability to pay, the court
awarded Wife $1,000 per month in alimony in futuro.
B.
Within 30 days of the entry of the final decree, Husband retained counsel and filed
a motion to set aside the final decree and for new trial. The motion acknowledged that
Husband was served with the complaint for divorce and claimed that he had lived with
Wife in the marital residence “throughout the entire duration of the divorce,” which was
one of two addresses Wife’s attorney used for service of pleadings. Husband claimed that
“[t]he parties had discussed reconciling on numerous occasions and [he] knew nothing
about the divorce moving forward.” He also claimed that he had no notice of the motion
for default or the final hearing. Husband believed “that Wife intentionally withheld all
reached the age of majority during the pendency of the case.
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correspondence and mail [related to the divorce] so that he would not know to participate
in the divorce proceedings.”
In response, Wife filed a sworn affidavit in which she denied either telling Husband
she “was trying to work things out or that [she] wanted to reconcile” or intercepting his
mail. Wife also filed the transcript from Husband’s deposition during which he also denied
receiving “a lot of paperwork” relative to the divorce. He claimed that “whatever was
mailed to the house, I never got it because [Wife] received the mail and I don’t know what
she did with it.”
After a hearing, the court denied Husband’s motion to set aside. So Husband
appealed.
Following the appeal, this Court entered a show cause order because the final decree
of divorce did not resolve all outstanding claims. See Tenn. R. App. P. 3(a) (providing for
appeals as of right only from final judgments); see also In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn. 2003) (recognizing “that in a civil case an appeal as of right may
be taken only after the entry of a final judgment”). In response to the order, the parties
obtained a final judgment that resolved all outstanding claims and supplemented the record
on appeal.
II.
In his appeal, Husband raises three issues. First, he argues that the trial court erred
in denying his motion to set aside the final decree of divorce and request for a new trial.
Second, he argues that the court erred in dividing the marital estate. And finally, he argues
that the court erred in awarding Wife $1,000 per month in alimony in futuro. For her part,
Wife requests an award of attorney’s fees she has incurred on appeal.
A.
In addressing Husband’s first issue, we begin by determining the basis under which
Husband sought relief. Husband’s motion did not cite a rule of civil procedure or any
authority for the court to set aside its final decree of divorce. Likewise, the transcript of
the argument before the trial court is devoid of any reference to the legal basis for relief.
On appeal, Husband contends that relief was appropriate under Tennessee Rule of Civil
Procedure 60.02 because “failure of notice constitutes excusable neglect.” See Tenn. R.
Civ. P. 60.02(1) (“On motion and upon such terms as are just, the court may relieve a party
. . . from a final judgment . . . for . . . excusable neglect . . . .”); see also Henry v. Goins,
104 S.W.3d 475, 480 (Tenn. 2003) (“When a party has no notice of a critical step in a court
proceeding, the circumstances may make out a case of excusable neglect.”). But “[t]he
function of . . . Rule [60.02] is to give relief from final judgments.” Campbell v. Archer,
555 S.W.2d 110, 112 (Tenn. 1977).
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As noted, the final decree of divorce Husband sought to set aside was not a final
judgment. It did not resolve Wife’s request for attorney’s fees. Because the final decree
was not a final judgment, the proper avenue for relief was under Tennessee Rule of Civil
Procedure 54.02. See Discover Bank v. Morgan, 363 S.W.3d 479, 488 (Tenn. 2012)
(concluding that “motions seeking relief from a trial court’s decision adjudicating fewer
than all the claims, rights, and liabilities of all the parties, should be filed pursuant to Rule
54.02”).
We review a trial court’s decision on “a motion to revise under Rule 54.02” for an
abuse of discretion. Id. at 487. So our review is limited. Beard v. Bd. of Prof’l
Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009). We will not “second-guess the court
below” or “substitute [our] discretion for the lower court’s.” Lee Med., Inc. v. Beecher,
312 S.W.3d 515, 524 (Tenn. 2010). Yet, discretionary decisions do not escape appellate
scrutiny. Id. In reviewing such decisions, we consider “(1) whether the factual basis for
the decision is properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles applicable to the
decision, and (3) whether the lower court’s decision was within the range of acceptable
alternative dispositions.” Id.Our supreme court instructs that, “when a party seeks relief from a default judgment
due to ‘excusable neglect’ [under Rule 54.02],” we first consider “whether the conduct
precipitating the default was willful.” Discover Bank, 363 S.W.3d at 494. Only if the
conduct is not willful do we then “consider whether the defaulting party has a meritorious
defense and whether the non-defaulting party would be prejudiced by the granting of relief”
and other factors. Id. But if the conduct of the defaulting party is willful, “the judgment
cannot be set aside on ‘excusable neglect’ grounds.” Id. Willful conduct includes
“deliberate choices” and “conduct that is flagrant and unexplained.” Id. at 493 (first
quoting Hayes v. Hayes, No. M2006-02356-COA-R3-CV, 2007 WL 2580026, at *2 (Tenn.
Ct. App. Sept. 6, 2007); and then quoting Barber & McMurry, Inc. v. Top-Flite Dev. Corp.,
720 S.W.2d 469, 471 (Tenn. Ct. App. 1986)).
Here, the conduct that precipitated the default was willful. Husband acknowledged
being served with the complaint for divorce and deciding to represent himself. He claimed,
both in his April 2018 deposition and in his June 2019 motion to set aside, that Wife was
intercepting his mail at the marital residence. But immediately after making that claim in
his deposition, Husband confirmed that divorce paperwork should be sent to him at the
marital residence. We also note that the certificate of service for the motion for default
judgment and for the order granting default and setting hearing show that both papers were
mailed to Husband at the marital address and another address where he frequently stayed.
While Husband offered the suspect assertion that he did not receive notice at his marital
residence, he failed to account for or explain why the notice sent to his other address was
not sufficient. A certificate of service “is prima facie evidence that the document was
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served in the manner described in the certificate and raises a rebuttable presumption that it
was received by the person to whom it was sent.” Orr v. Orr, No. 01-A-01-9012-CH-
00464, 1991 WL 226916, at *4 (Tenn. Ct. App. Nov. 6, 1991).
Husband approached the divorce as if it was not going to happen. In refusing to
respond to questions or produce subpoenaed information, he stated, “[W]e’re not going to
get a divorce right now.” The following exchange from his deposition typified his attitude:
Wife’s Counsel: And as far as you know, it hasn’t been – your wife
has not dismissed her Complaint for Divorce as we sit here today, correct?
Husband: That is correct.
Wife’s Counsel: Have you had any conversations with your wife
about the divorce? Has she indicated to you that she’s not going through
with the divorce?
Husband: No, we haven’t spoken.
Wife’s Counsel: So what makes you think that you’re not going to
get a divorce?
Husband: That’s just my wishful thinking.
Reality proved Husband wrong.
We discern no abuse of discretion in the denial of the motion to set aside. Husband’s
conduct in failing to respond to the complaint, in failing to meaningfully participate in the
proceedings, and in failing to consult with legal counsel until after entry of the decree of
divorce was deliberate and not adequately explained; thus it was willful.
B.
We also apply the deferential abuse of discretion standard of review to the division
of marital property. Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). In dividing marital
property, the trial court follows “essentially a three-step process.” Melvin v. Johnson-
Melvin, No. M2004-02106-COA-R3-CV, 2006 WL 1132042, at *10 (Tenn. Ct. App. Apr.
27, 2006) (Koch, J., concurring) (citing Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn. Ct.
App. 1998)). First, it identifies the parties’ property and classifies it as either marital or
separate. Id. Second, the court “value[s] the marital property (and, when appropriate, the
separate property).” Id. Third, it “divide[s] or apportion[s] the marital property.” Id. In
the final step, the factors in Tennessee Code Annotated § 36-4-121(c) provide the guide.
Larsen-Ball v. Ball, 301 S.W.3d 228, 234 (Tenn. 2010). But the application of the statutory
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factors is not a mechanical process. Id. To reach an equitable division, the trial court must
weigh the relevant factors in light of the proof at trial. See id.; Batson v. Batson, 769
S.W.2d 849, 859 (Tenn. Ct. App. 1988).
Husband faults the court for each step of the process. First, he complains of
improper classification, specifically that the court included real estate no longer owned by
him or Wife as marital property. “Marital property” includes
all real . . . property . . . acquired by either or both spouses during the course
of the marriage up to the date of the final divorce hearing and owned by either
or both spouses as of the date of filing of a complaint for divorce . . . and
including any property to which a right was acquired up to the date of the
final divorce hearing.
Tenn. Code Ann. § 36-4-121(b)(1)(A) (2017). Unless fraudulently conveyed, “property
once owned by a spouse . . . , but not owned by either spouse at the time of divorce, is not
subject to classification and division or distribution when the divorce is pronounced.”
Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996). Classification of property
presents a question of fact. Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007).
So we review the classification decision de novo upon the record with a presumption of
correctness. Tenn. R. App. P. 13(d).
Wife testified to real estate owned during the marriage, though Husband “had
transferred [several properties] to his father’s name and a couple of friends.” Wife
provided a list of the properties, 16 in all, along with their value, the amount of debt
associated with the property, and the equity. The court admitted the list as Exhibit 2.
In its decree, the court addressed properties owned both before and after the filing
of the divorce.
During the marriage, [Husband] purchased several pieces of real
property for rental purposes. He used lines of credit against a previous
marital residence and current marital residence to secure funds to purchase
the rental properties. [Husband] deposited the rental proceeds into the
parties’ joint bank account. Funds from the joint account were used to pay
expenses for the properties. The Court finds the properties are marital assets
and are therefore subject to equitable division by this Court. [Husband]
conveyed several pieces of rental property to third parties shortly before
[Wife] filed her Complaint for Divorce. [Husband] conveyed three (3) pieces
of rental property to third parties after [Wife] filed her Complaint for
Divorce. Such conveyances being in violation of the statutory injunction
placed upon divorcing parties pursuant to Tenn. Code Ann. § 36-4-106(d).
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The court then awarded Wife six properties, the first six listed on Exhibit 2, and awarded
Husband “the remainder of the real property listed on Exhibit 2.”
Husband contends that the court’s award “was problematic because the parties did
not own nine of the ten parcels awarded to [Husband].” But we do not interpret the court’s
order as awarding properties to Husband that the couple no longer owned. The term
“remainder of the real property listed on Exhibit 2” referred to a single property located at
15 Decatur Street in Nashville.2 The property was listed seventh on Exhibit 2, and the
testimony established that Husband had an ownership interest in the property with another
person.
Husband also complains that the court failed to value the marital property or
determine the amount of marital debt and failed to give “thoughtful consideration” to the
statutory factors that guide the division of marital property. These complaints implicate
the trial court’s responsibility to make factual findings. Under Tennessee Rule of Civil
Procedure 52.01, in bench trials, the court must “find the facts specially and . . . state
separately its conclusions of law.” Tenn. R. Civ. P. 52.01.
We agree with Husband that the court’s divorce decree lacks some factual findings.
But when confronted with insufficient findings of fact, an appellate court is not without
alternatives. One alternative is to vacate the decision and remand so that the trial court can
make specific findings of fact and conclusions of law. Lovlace v. Copley, 418 S.W.3d 1,
36 (Tenn. 2013). Another alternative is to conduct a de novo review of the record to
determine where the preponderance of the evidence lies. Id. The appropriate alternative
depends on the particular circumstances of the case, including the adequacy of the record,
the fact-intensive nature of the case, and whether witness credibility determinations must
be made. See id. (declining to conduct a de novo review because credibility determinations
were necessary to resolve factual disputes); Town of Middleton v. City of Bolivar, No.
W2011-01592-COA-R3-CV, 2012 WL 2865960, at *26 (Tenn. Ct. App. July 13, 2012)
(stating that independent review is appropriate when the case involves a legal issue or the
court’s decision is “readily ascertainable”).
Here, we conclude that the better alternative is to conduct a de novo review of the
record to determine where the preponderance of the evidence lies. Although the division
of marital property is a fact-intensive inquiry involving the careful weighing of the relevant
statutory factors, only Wife offered testimony concerning marital property. So there are
no disputed factual assertions or credibility determinations that must be made.
2
Although not part of the divorce decree, the judge’s comments from the bench are consistent with
the interpretation that the decree only awarded properties in which at least one of the parties retained an
interest. In referring to the properties that Husband transferred, the judge stated, “you can’t do anything
[with those properties].”
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On this record, we discern that the court relied on the property values and debt
amounts listed in Exhibit 2.3 And based on the factual findings made by the court, the court
relied heavily on two statutory factors in making its property division: duration of the
marriage and dissipation of assets. See Tenn. Code Ann. § 36-4-121(c)(1), (5)(B). The
parties had been married 18 years, and Wife testified that Husband had sold marital
property in the months leading up to the divorce and after the divorce. The court found
that the property transfers by Husband after the filing of the divorce violated a statutory
injunction against such transfers. See id. § 36-4-106(d) (2017) (“enjoining both parties
from transferring, assigning, . . . or in any way disposing . . . of any marital property” after
the filing of the divorce). The evidence does not preponderate against these factual
findings.
Given the facts, we cannot say the court’s division of the marital property was
inequitable or an abuse of discretion. The timing of Husband’s property transfers, along
with the length of the marriage, favored awarding a greater percentage of the marital assets
to Wife.
C.
Much like the division of the marital estate, alimony decisions are fact-driven and
“involve[] the careful balancing of many factors.” Gonsewski v. Gonsewski, 350 S.W.3d
99, 105 (Tenn. 2011). The court’s decision should be made after considering the factors
in Tennessee Code Annotated § 36-5-121(i), particularly the disadvantaged spouse’s need
and the obligor spouse’s ability to pay. Id. at 109-10.
The type of alimony awarded Wife, alimony in futuro, is “intended to provide
support on a long-term basis until the death or remarriage of the recipient.” Id. at 107;
Tenn. Code Ann. § 36-5-121(f)(1) (2017). This long-term support is awarded when one
spouse is relatively disadvantaged and rehabilitation is not feasible. Tenn. Code Ann. §
36-5-121(f)(1). Rehabilitation is not feasible if,
the disadvantaged spouse is unable to achieve, with reasonable effort, an
earning capacity that will permit the 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
3
Exhibit 2 included the fair market value of each real property and, if known to Wife, the amount
of debt encumbering the property. The exhibit failed to list values for the parties’ vehicles, but we decline
to grant Husband relief on this basis. Under Rule 36(a) of the Tennessee Rules of Appellate Procedure,
relief need not “be granted to a party responsible for an error or who failed to take whatever action is
reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36. Husband
refused to provide asset information to Wife in discovery. When asked to explain his refusal, Husband
said, “I don’t plan on getting a divorce, so I don’t really – I’m not going to forfeit that information for, you
know – I’m not – I’m not getting a divorce.”
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available to the other spouse, considering the relevant statutory factors and
the equities between the parties.
Id.Husband complains that the evidence in the record does not support the
determination that Wife was the economically disadvantaged spouse. He argues this is
especially true given that Wife “received the lion’s share of the marital estate.”
We discern no abuse of discretion in the trial court’s award of alimony in futuro.
Wife testified that she earned gross income of $3,300 per month. Her income and expense
statement revealed reasonable monthly expenses post-divorce that resulted in a deficit each
month of approximately $2,000. Wife’s monthly deficit indicated a need for support. As
for Husband’s income, Wife was hesitant to testify about Husband’s occupation. But over
the course of the marriage, Husband accumulated a substantial real estate portfolio,
including several properties that were income generating. He also acquired several
vehicles. As a result of the court’s property division, Husband still owned at least one
rental property, and he would be relieved of the debts associated with the properties and
vehicles awarded to Wife. Husband possessed the ability the pay.
D.
Wife seeks her attorney’s fees on appeal “in the amount of $10,000.” In a divorce,
we may award attorney’s fees incurred in an appeal. Seaton v. Seaton, 516 S.W.2d 91, 93
(Tenn. 1974). The decision to award fees lies within our discretion. See Gonsewski, 350
S.W.3d at 113. But “[s]uch awards are appropriate only when the spouse seeking them
lacks sufficient funds to pay his or her own legal expenses or the spouse would be required
to deplete his or her resources in order to pay them.” Id. (citations omitted).
We decline to award Wife attorney’s fees incurred on appeal.
III.
We affirm the judgment of the trial court. This case is remanded for any further
proceedings, consistent with this decision, that may be necessary.
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W. NEAL MCBRAYER, JUDGE
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