Mary Wagoner-Angelin v. Randall Jon Angelin ( 2017 )

08/29/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 3, 2017
MARY WAGONER-ANGELIN v. RANDALL JON ANGELIN
Appeal from the Circuit Court for Hamilton County
No. 12-D-1291 L. Marie Williams, Judge
No. E2016-01850-COA-R3-CV
This appeal concerns post-divorce matters pertaining to a marital dissolution agreement
(“the MDA”) and a parenting plan. Mary Wagoner-Angelin (“Mother”) filed a petition
seeking modification of the parenting plan against ex-husband Randall Jon Angelin
(“Father”) in the Circuit Court for Hamilton County (“the Trial Court”). Father filed an
answer and counterclaim challenging the alimony provision in the MDA. Mother later
amended her petition to include allegations of civil contempt for Husband’s alleged
failures to abide by the MDA and parenting plan. After a trial, the Trial Court, inter alia,
found Father in contempt. Father appeals to this Court. We affirm the Trial Court in its
determination that Father is bound by the provisions of the MDA. We affirm the Trial
Court in its finding an upward deviation for the parties’ daughter Rachel’s private school
tuition. Regarding the other issues, we remand with instructions. The judgment of the
Trial Court therefore is affirmed, in part, vacated, in part, and remanded for further
proceedings consistent with this Opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed, in part, and Vacated, in part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and KENNY W. ARMSTRONG, JJ., joined.
William H. Horton, Chattanooga, Tennessee, for the appellant, Randall Jon Angelin.
Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee,
Mary Wagoner-Angelin.
OPINION
Background
Mother and Father were married in April 1997. Two children were born of the
marriage: Barbara, born in December 1997, and Rachel, born in July 2000. Barbara
reached majority age by the time of trial in this matter. Mother and Father divorced in
October 2012. The divorce decree incorporated the MDA and a permanent parenting
plan. The following provisions of the MDA are in dispute on appeal:
2.1. Alimony. Husband shall pay to Wife the sum of One Thousand
Five Hundred Dollars ($1,500.00) per month beginning the first day of the
month following the entry of the Final Decree of Divorce in this matter, as
non-modifiable alimony for a period of ten (10) years. Such alimony
payments, and any adjusted alimony payments as herein provided, shall be
taxable to the Wife and deductible to the Husband for Federal and state
income tax purposes. All unpaid alimony payments for the period stated in
and pursuant to this paragraph shall terminate upon Wife’s death but not
upon Husband’s death or the remarriage of Wife. In the event of Husband’s
death prior to the expiration of the nine-year period of alimony, Wife will
be treated as a secured creditor for any claim for the remaining alimony due
for the nine-year period of alimony, which remaining alimony shall be paid
by Husband’s estate over any remaining alimony term as herein provided.
Husband and Husband’s estate shall not be required to pledge any assets or
take any action to make Wife a secured creditor.
***
Husband and Wife own real estate located at . . . , Ooltewah,
Tennessee 37363 (“the Marital Residence” herein). The parties agree that
the Marital Residence shall be the separate property of the Wife with all
right, title and interest in that real property being divested out of the
Husband and vested solely in the Wife. Wife agrees to pay to Husband the
sum of Thirteen Thousand Five Hundred Dollars ($13,500.00) for his one-
half (1/2) of the equity in the Marital Residence. The Husband shall execute
any and all documents, including but not limited to a Quit Claim Deed, to
his interest in said real property. The Wife shall be responsible for all
liabilities on the real property located at that address and will indemnify
and hold the Husband harmless thereon.
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Wife shall make every effort to refinance the Marital Residence
within three (3) to five (5) years of the entry of the Final Decree of Divorce
in this matter.
Husband shall be responsible for resolving the flooding issues of the
Marital Residence and will ensure that a termite inspection and treatment
for termites in the Marital Residence is completed within six (6) months of
the filing of the Final Decree of Divorce in this matter.
Husband shall also be responsible for the repair and stain of the deck
and porch at the Marital Residence as well as the repair and stain of their
children’s wooden jungle gym within one (1) year of the entry of the Final
Decree of Divorce in this matter.
Under the terms of the parenting plan, Mother was designated primary residential
parent of the two children. Father was ordered to pay $1,000 per month in child support,
including an upward deviation to account for a portion of the children’s private school
tuition. Educational decisions, non-emergency healthcare, religious upbringing, and
extracurricular activities were to be joint decisions between the parents. Uncovered
reasonable and necessary medical expenses were to be shared between the parents on a
pro rata basis. Further, the parenting plan provided: “As additional child support, Father
shall pay fifty percent (50%) of the extracurricular activity expenses incurred for the
children’s benefit.”
In January 2015, Mother filed a petition for modification of the permanent
parenting plan, alleging a material change of circumstances arising from Father’s notice
of intent to relocate to Oregon. In March 2015, Father filed his answer and counterclaim,
challenging his alimony obligation under the MDA in light of Mother’s increased earning
ability since the divorce. Father also requested that the younger child be allowed to move
with him to Oregon, with the older child to remain in Chattanooga. In July 2015, Mother
requested leave to amend her petition for modification to assert several claims of
contempt against Father. The Trial Court granted the motion to amend. This case was
tried in April 2016.
Mother testified. Mother, a social worker, received her master’s degree in 2012.
Mother testified that Father failed to pay her one half of $4,013.99 she had incurred for
the children’s extracurricular activities. Mother testified that she also had incurred
$4,641.51 in medical expenses, and that Father owed her half of that, as well. When
asked if she knew why Father was not paying her, Mother stated: “He told me that he
didn’t feel like he needed to pay that.”
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On cross-examination, Mother testified regarding extracurricular activities as
follows:
Q. In fact, if you look at the parenting plan on page -- I think it’s page -- on
Page Four, any decisions regarding extracurricular activities had to be a
joint decision. Is that correct?
A. Yes.
Q. And then if there was a joint decision on it, then paragraph one under
child support said that he would pay 50 percent?
A. Yes.
Q. So you had no problem with that for awhile?
A. Yes.
Q. And I believe you told me that these additional extracurricular activity
fees that you’re now seeking to recover, that he only quit paying those
when he said he was not agreeing on extracurricular activities anymore. Is
that correct?
A. Yeah. He sent me an email, I believe, that said he wasn’t paying any
more of the extracurriculars.
Q. He wasn’t agreeing to those extracurricular activities?
A. He said he wasn’t paying. That’s all. I mean, these are activities they’ve
always done, so I don’t know -- he didn’t say that specifically like that.
Q. Well, didn’t you tell me that your list of extracurricular activity charges
was only after he said he was not agreeing anymore to extracurricular
activities?
A. When he said he wouldn’t pay anymore?
Q. Well, maybe we’re quibbling over words.
A. Okay.
Q. Let’s look at Page 32 and see -- make sure that I’m not remembering it
incorrectly. On Page 32, my question was on Line Four: But he was
definitely telling you I’m not agreeing to it anymore. And you said yeah,
right. So everything you’ve listed on here is what you’ve paid since he said
I’m not agreeing anymore. And your answer was what, on Line Nine?
What was your answer on Line Nine?
A. Yes.
Mother testified further regarding flooding problems at her home:
Q. Isn’t it true, Mrs. Wagoner-Angelin, that the only thing you discussed
with him at the time he signed this agreement was that he would build this
diversion mound on the driveway? He had already started that, in fact, had
he not?
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A. No to the first part of your question, yes to the second part. The reason
that it ended up in the divorce decree, this has been a big issue for me
because for years I would tell him to deal with it and he never did. That’s
why it was specifically in there. As a matter of fact, I told him that because
this has been such a problem for us for years that we needed it in the
divorce decree. But his idea he told me was we need a bigger bump. That’s
the answer. But what his -- what had previously been done is he made a
mound in the back yard and then the grates like they were without any
consulting of anybody to be able to address the issue. So that is why it has
been in the divorce decree, because it’s been a problem, ongoing problem,
for years. It didn’t just start. We do not live in a flood plain or anything
like that.
Q. Well, what I’m asking you is, he had already done some work before.
You said he had installed pipes before.
A. And the mound.
Q. He had already installed pipes before he started building the mound,
correct?
A. Oh, the pipes were built years ago.
Q. Yeah, earlier.
A. Right.
Q. He had done that?
A. Yes.
Q. Okay. And then the only thing you discussed with him at the time he
signed this agreement to, quote, “resolve the flooding problem” was to
build this mound. Is that correct?
A. No. That was his idea to fix it.
Q. Well --
A. Mine was I wanted the flooding problem totally fixed, but it wasn’t just
going to be a mound. And he and I argued about that because he felt
making the wall bigger would help.
Regarding medical decisions, Mother stated:
Q. Let me show you -- I guess it’s Exhibit Five, is your list of bills. I’ll
show you Exhibit Four, too. I’ll ask you questions about that. Were the
only two bills listed on there that you discussed with him the McCamish
and the Susong bills?
A. He was aware when there were -- for the most part, he was aware when
they went to the different appointments. But then when he stopped paying,
I would send him emails telling him about them, you know, which was --
which was due or what was being paid.
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Q. Well, remember, I asked you in your deposition on Page 29 if you had --
if you had discussed certain bills with him, such as Covenant Allergy &
Asthma, and you said no. And then I asked you on Line 23, on Page 29,
but he did discuss Susong and did discuss McCamish with you. And you
said yes. Is that correct?
A. Yes, because this was -- this was after – I believe, if I remember right,
this was after the point when we weren’t communicating.
Father, age 46, testified. Father stated that he moved to Oregon in 2015 but
returned that year. Father had remarried since the divorce. Father, a systems analyst who
worked with computers, testified that he earns $5,800 per month. Father testified that he
did not retain an attorney to review the MDA with him. Father asked the Court to make
the alimony modifiable, notwithstanding the terms of the MDA. Father testified
regarding his finances:
Q. Slightly less than $70,000?
A. Yes.
Q. And you’re paying her 30?
A. Yes.
Q. And does that leave you 40 before tax?
A. Yes.
Q. And if she’s making 50 and you’re giving her 30, she’s living on 80,000.
Is that correct?
A. Yes.
Q. Are you able to continue to afford to live on $40,000 a year --
A. No.
Q. -- with your expenses?
A. No.
Regarding extracurricular activities, Father testified:
Q. And then I want to ask you what this document is, sir.
A. These are extracurricular activities that I paid for out of the savings that I
had.
Q. And how much did you pay during the – what’s the time period that
we’re taking about? What’s the earliest date and the latest date on this list?
A. September of 2012 through October of 2014.
Q. And what’s the total of extracurricular activities you paid during that
period?
A. $4,062.60.
Q. Did she ever reimburse you for one half of these?
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A. No.
Q. Did you ever ask her for it?
A. Well, we -- we discussed it. I in fact, she had asked me to give her a list
of what I had paid.
Q. And did she start sending you expenses after October of 2014?
A. Yes.
Q. Did you pay any of those?
A. No.
Q. Why did you not pay any of those?
A. I didn’t have any money. I was broke. My savings had ran out and I was
broke. I was living off of only what I made month to month.
Q. Did she incur expenses with the children that you never agreed to?
A. Yes.
Q. Did she do it unilaterally?
A. Yes.
Q. Did you still pay it?
A. No.
Q. After October of 2014, did you pay anything that she did without your
consent --
A. No.
Q. -- or agreement?
A. No.
Josh Riley (“Riley”), a handyman who inspected Mother’s home, testified. Riley
had worked on flooding prevention and remediation for seven years. Riley testified that
resolving the flooding issues at Mother’s home would cost $12,710. This sum included
the cost of re-grading, gravel, and installing drains. Riley acknowledged he was not a
licensed engineer, nor had he a contractor’s license.
In May 2016, the Trial Court entered an order stating:
This cause is before the Court on the Petition for Modification of the
Permanent Parenting Plan filed January 14, 2015, the Answer and
Counterclaim of the defendant, and the Amended Complaint and Petition
for Modification. The Petitions for Modification are grounded in large part
on the defendant’s intent to relocate to Oregon. At the time of trial, the
Father had relocated to Oregon and returned to Chattanooga and the older
of the two children had “aged out.” Those occurrences left for resolution by
trial:
--The counter-petitioner’s request to modify the child support due to
changes in the income of the parties;
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--Whether there should be an upward deviation in the child support;
--Modification of the child support because of there now being only one
child who is a minor;
--The petitioner’s contention the residential schedule adopted by entry of
the October 30, 2012 Final Decree should be modified because of failure of
Father to exercise his residential time; and
--Allegations of contempt based on the Marital Dissolution Agreement and
respondent’s alleged violation thereof.
Respondent also moves under Rule 60.02(4) of the Tennessee Rules of Civil
Procedure to be relieved from the alimony obligation of the Final
Judgment.
The Court heard the testimony of the parties and the testimony of
Josh Riley who testified concerning the cost of making repairs to the
driveway. Based upon the file as a whole, the evidence before the Court,
and the Court’s assessment of credibility, the Court finds as follows:
The Court first will address the Motion for Relief from Judgment.
Mr. Angelin seeks to modify paragraph 2.1 of the Marital Dissolution
Agreement which provides in pertinent part:
Husband shall pay to Wife the sum of One Thousand Five
Hundred Dollars ($1,500.00) per month beginning the first
day of the month following the entry of the Final Decree of
Divorce in this matter, as non-modifiable alimony for a
period of ten (10) years. . . . All unpaid alimony payments for
the period stated in and pursuant to this paragraph shall
terminate upon Wife’s death but not upon Husband’s death or
the remarriage of Wife. . . .
The evidence establishes Mrs. Wagoner-Angelin was represented by
counsel and Mr. Angelin was not represented at the time of the negotiation
of the settlement. However, there is no evidence of fraud or any other basis
for setting aside this portion of the Final Decree. While the Husband
contends the judgment no longer is equitable, it is clear he simply is
rethinking his position. The language of the Marital Dissolution Agreement
is clear and unequivocal and is not couched in any legalese which would be
difficult for him to understand. Mr. Angelin concedes he never met or
negotiated with Attorney Lawrence but came in and signed the papers. He
is well educated. It is his contention that the agreement simply is not fair
and he did not understand the alimony did not terminate except at the end
of ten years. Mrs. Wagoner-Angelin testified Mr. Angelin read the
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agreement and had ample opportunity to read and question the agreement.
The Court does not find a basis to set aside the agreement. While the
Husband and Wife did not discuss the issues together, there is evidence
they did read it together out loud. The Court does not find that there is a
reason justifying relief from the operation of the judgment.
The Petition for Contempt is based on the contention of plaintiff
Wagoner-Angelin that Mr. Angelin is in contempt of court for violating
paragraph 4.2 of the Marital Dissolution Agreement which provides:
Husband shall be responsible for resolving the flooding issues
of the Marital Residence and will ensure that a termite
inspection and treatment for termites in the Marital Residence
is completed within six (6) months of the filing of the Final
Decree of Divorce in this matter. Husband shall also be
responsible for the repair and stain of the deck and porch at
the Marital Residence as well as the repair and stain of their
children’s wooden jungle gym within one (1) year of the
entry of the Final Decree of Divorce in this matter.
The flooding issue is an issue which has been a problem at the
marital residence for many years. The Wife testified the flooding problem
was known from the beginning and they talked about it before the
agreement was signed. The Husband’s resolution was to put a big bump in
the driveway to divert the water. That attempted repair was completely
ineffective. Exhibit 1 demonstrates the flow of the water through the yard
and the current condition of the driveway. The defendant built the hump in
the driveway but never finished it because no one could drive over it. The
hump was his proposed resolution. After he worked on the hump she told
him not to touch it again. He testified she hired someone to fix it and paid
that person $1,213.00 which he reimbursed. The testimony of Josh Riley
now establishes that the flooding repair attempt was very ineffective and
that the repair was done inappropriately. There should have been larger
french drains or pipes installed and the alleged repair simply cannot support
the situation.
The Court finds that no matter how long the condition has been
there, the Marital Dissolution Agreement is clear and unambiguous in its
requirement of the Husband to resolve “the flooding issues of the Marital
Residence.” Both parties articulate the flooding issue at the residence in
the same way describing the water problems in the back yard. The Court
finds resolution of that problem is the responsibility of Mr. Angelin under
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the Marital Dissolution Agreement and that the petitioner has established
damages in the amount of $12,710.00 which is the cost of repair.
The Marital Dissolution Agreement also requires the Husband to
“ensure that a termite inspection and treatment for termites in the Marital
Residence is completed within six (6) months of the filing of the Final
Decree of Divorce in this matter.” The Husband has undertaken an
inspection himself and there has been no treatment. He has no expertise or
training in the detection or eradication of termites. He says he can look at
wood and tell if termites are present. The Court finds he has failed to meet
his obligations under the Marital Dissolution Agreement on this issue and is
required to pay for an inspection of the residence and any required
treatment within 45 days of entry of this Order.
Last of the Marital Dissolution Agreement issues is the obligation of
the Husband to repair and stain the deck and porch on the marital residence
and the children’s wooden jungle within one year of entry of the Final
Decree. Again, he has failed to meet his obligations. Some of the deck has
been stained by the Wife at a cost to her of $171.23. That job has not been
completed and the children’s jungle gym has not been repaired and stained.
Despite the fact that the children no longer use it, he assumed that
obligation under the Marital Dissolution Agreement and shall complete this
obligation and the deck staining and repair within 45 days of entry of the
Final Decree. In the event defendant fails to complete his obligations
within the time set in this Order, plaintiff shall complete them and
defendant shall reimburse her immediately for the cost upon presentation of
proof of the expenses. Judgment is entered for the $171.23 petitioner
already has spent trying to meet respondent’s obligation.
The Court now will turn to the prayer for modification of the
Permanent Parenting Plan. T.C.A. 36-6-101(a)(2)(C) sets out the standard
for modification of the Court’s prior decree pertaining to a residential
parenting schedule. The petitioner is required to prove by a preponderance
of the evidence a material change of circumstances affecting the child’s
best interest. Relevant to this case, such a material change of circumstances
may be alleged to be the failure to adhere to the Parenting Plan or other
circumstances making a change in the residential parenting time in the best
interest of the child.
The original Permanent Parenting Plan provided for the Father to
have parenting time with the children from Saturday at 12:00 p.m. until
Monday at 9:00 p.m. every week. The Mother’s proposed plan which is
Exhibit 3 proposes the Father have one weekend per month from Saturday
at an unspecified time until Sunday at 6:00 p.m. and every Sunday from
9:00 a.m. to 8:00 p.m. The Father proposes he have both children as agreed
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upon by the children and the Father but not less than four days every two
weeks for Rachel. He proposes all other times be flexible.
First, the Court notes only Rachel remains a minor within the
jurisdiction of this Court for Parenting Plan purposes. Further, it is
stipulated that there is only a child support obligation left for Rachel. The
Court does not find a flexible agreement such as proposed by Father in the
best interest of the child. The Mother feels more specificity is necessary
and this Court agrees. The Father has not seen the children on the
residential schedule previously established but testifies that he has seen the
children every other week or so and in the last year they have spent the
night with him two times because of difficulty in his finding housing.
The Court finds neither proposed Parenting Plan in the best interest
of the children and does not find it in the best interest of Rachel to modify
the current residential schedule. It provides the specificity sought by
Mother and gives Father time with Rachel he can exercise as his living
situation stabilizes.
The Court does find child support must be recalculated because of
Barbara having reached the age of majority. The Court finds the parties
originally agreed to an upward deviation in child support because of the
Father’s agreement to be responsible for a portion of the children’s private
school tuition. He also was responsible for 50 percent of the extracurricular
activity expenses. The Court finds it has been the practice in this family for
the children to receive a private school education. Both parents instituted
and abided by this practice. At the time of the entry of the Final Decree of
Divorce, Mr. Angelin was earning substantially more than Mrs. Wagoner-
Angelin and he found an equal division of tuition and extracurricular
activities expenses fair at that point. The Court finds that division still to be
fair and ORDERS him to pay one-half of the tuition utilizing school
expenses as an upward deviation.
The Court further finds Father is in contempt for failure to pay
medical and extracurricular activity expenses as agreed to in the original
Permanent Parenting Plan. He has the ability to make these payments for
which he is obligated. The Court finds Mr. Angelin has failed to pay for
one-half of the uncovered medical expenses and judgment is entered
against him in the amount of $2,320.75 for his one-half of that obligation.
Further, he owes one-half of the extracurricular activity expenses, which
expenses total $4,013.99 as reflected on Exhibit 5. Accordingly, he owes
one-half of that amount or $2,007.00 for which judgment is entered.
Counsel are ORDERED to calculate the child support within the
dictates of this Memorandum Opinion, to submit a Child Support
Worksheet and a Final Decree consistent with this Memorandum Opinion.
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The costs of this cause are taxed against defendant Angelin for which
execution may issue if necessary. The Court finds attorney’s fees for
collection of the extracurricular activities and medical expenses should be
taxed to the Father as they are in the nature of child support. Attorney
Lawrence is ORDERED to submit an attorney’s fee affidavit for expenses
related to these two issues.
The Court finds both parties to be credible. Mr. Angelin was fairly
frank in his testimony. It is clear that he simply signed an agreement he
now wishes to back out of and there is no relief available to him under the
facts of this case when the applicable law is addressed.
In July 2016, the Trial Court entered an additional order, this time stating:
This cause came to be heard before the Honorable L. Marie
Williams, Circuit Court Judge for the Eleventh Judicial District of
Hamilton County, Tennessee, Division III, upon the Petition for
Modification of the Permanent Parenting Plan filed on January 14, 2015 by
Mary Wagoner-Angelin (“Petitioner”), the Answer and Counterclaim filed
by Randall Jon Angelin (“Respondent”), and the Petitioner’s Amended
Complaint and Petition for Modification. Based upon the Court’s findings
and its ruling in this cause as set forth in the Memorandum Opinion entered
on the 19th day of May, 2016, it is ORDERED, ADJUDGED, and
DECREED that:
1. Randall Jon Angelin’s Motion for Relief from Judgment is denied
and for the reasons stated in the Memorandum Opinion the Court declines
to modify paragraph 2.1 of the Marital Dissolution Agreement regarding
the non-modifiable alimony.
2. Randall Jon Angelin is in contempt for his failure to resolve the
flooding issues of the Marital Residence, the cost of which is established as
being Twelve Thousand Seven Hundred and Ten Dollars ($12,710.00), and
therefore a judgment is entered against Randall Jon Angelin in the amount
of Twelve Thousand Seven Hundred and Ten Dollars ($12,710.00) for
which execution may issue if necessary.
3. Randall Jon Angelin is in contempt for his failure to ensure that a
termite inspection and treatment for termites in the Marital Residence was
completed within six (6) months of the filing of the Final Decree of
Divorce in this matter. Therefore, Randall Jon Angelin is required to pay
for an inspection of the Marital Residence and any required treatment
within 45 days of entry of the entry of this Final Decree.
4. Randall Jon Angelin is in contempt for his failure to repair and
stain the deck and porch on the Marital Residence and the children’s
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wooden jungle gym within one year of entry of the Final Decree of
Divorce. For funds already expended by May Wagoner-Angelin in her
attempt to repair and stain the deck, a judgment is entered against Randall
Jon Angelin in the amount of One Hundred and Seventy-One Dollars and
Twenty-Three Cents ($171.23). Further, Randall Jon Angelin is ordered to
complete the repair and staining of the deck and porch on the Marital
Residence and the children’s wooden jungle gym within 45 days of entry of
this Final Decree. In the event that Randall Jon Angelin fails to complete
his obligations within the time set in this Order, Mary Wagoner-Angelin
may complete the obligations and Randall Jon Angelin shall reimburse
Mary Wagoner-Angelin immediately for the cost upon presentation of
proof of the expenses.
5. The parties’ youngest child, Rachel, is the only minor child of the
parties for which Randal Jon Angelin continues to have a child support
obligation. As an upward deviation from his basic child support obligation,
Randall Jon Angelin shall continue to pay one-half of the private school
tuition for the parties’ minor child, Rachel. The Child Support Worksheet
attached hereto as Exhibit “A” is approved and adopted by this Court and
incorporated herein by reference as stating the Court’s Child Support
Order, with each provision thereof becoming an Order of this Court, and
jurisdiction is retained in this Court for enforcement of this Order and
issuance of such further Orders as may be necessary;
7. Randall Jon Angelin is in contempt for his failure to pay medical
and extracurricular activity expenses as agreed to in the original Permanent
Parenting Plan, and for his failure to pay for one-half of the uncovered
medical expenses, a judgment is entered against Randall Jon Angelin in the
amount of Two Thousand, Three Hundred and Twenty Dollars ($2,320.75),
and for his failure to pay one-half of the extracurricular activity expenses, a
judgment is entered against Randall Jon Angelin in the amount of Two
Thousand and Seven Dollars ($2,007.00);
8. The Court finds attorney’s fees for collection of the
extracurricular activities and medical expenses should be taxed to Randall
Jon Angelin as they are in the nature of child support and Mary Wagoner-
Angelin’s attorney shall submit an attorney’s fee affidavit for expenses
related to these two issues.
9. The costs of this cause are taxed against the Defendant, Randall
Jon Angelin, for which execution may issue if necessary.
In August 2016, the Trial Court entered an order denying Father’s motion to alter
or amend judgment. In February 2017, the Trial Court entered its final order in this
matter, granting an award of attorney’s fees to Mother in the amount of $2,956.54 related
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to collecting extracurricular and medical expenses from Father. Father appeals to this
Court.
Discussion
Although not stated exactly as such, Father raises the following five issues on
appeal: 1) whether the Trial Court erred in failing to modify Father’s alimony obligation;
2) whether the Trial Court erred in modifying the parenting plan to require Father to pay
educational expenses; 3) whether the Trial Court erred in finding Father in contempt for
failure to adhere to the MDA; 4) whether the Trial Court erred in finding violations of the
parenting plan by Father; and, 5) whether the Trial Court erred in awarding attorney’s
fees to Mother related to collection of extracurricular and medical expenses. Mother
raises her own issue of whether the Trial Court erred in declining to find Father in
contempt for not paying one-half of her attorney’s fees in the underlying divorce action
as provided in the MDA.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
We first address whether the Trial Court erred in failing to modify Father’s
alimony obligation. Father seeks relief pursuant to Tenn. R. Civ. P. 60.02. According to
Father, the fact that he is to pay $1,500 per month to Mother as non-modifiable alimony
is harshly inequitable. Father adds that he was unrepresented when the MDA was signed,
and he did not understand the agreement fully. Our Supreme Court has discussed relief
from judgment under Rule 60.02, as relevant:
[W]e have characterized relief under Rule 60.02 as an “exceptional
remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992),
“designed to strike a proper balance between the competing principles of
finality and justice,” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
1976). Rule 60.02 provides an “escape valve,” Thompson v. Firemen’s
Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be
easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).
We have reversed relief granted under Rule 60.02 where the judgment was
“not oppressive or onerous.” Killion v. Tenn. Dep’t of Human Servs., 845
S.W.2d 212, 214 (Tenn. 1992). “[R]elief under Rule 60.02 is not meant to
be used in every case in which the circumstances of a party change after the
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entry of a judgment or order, nor by a party who is merely dissatisfied with
a particular outcome.” Henderson, 318 S.W.3d at 336.
***
Although motions based on Rule 60.02(5) are subject only to the
“reasonable time” limitation, Tenn. R. Civ. P. 60.02; see also Rogers, 50
S.W.3d at 446, Rule 60.02(5) has been construed narrowly by Tennessee's
courts. See Holiday v. Shoney’s South, Inc., 42 S.W.3d 90, 94 (Tenn. Ct.
App. 2000) (citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97
(Tenn. 1993)). Rule 60.02(5) does not “relieve a party from his or her free,
calculated, and deliberate choices.” Id. Instead, the rule “affords relief in
the most extreme, unique, exceptional, or extraordinary cases and generally
applies only to circumstances other than those contemplated in sections (1)
through (4) of Rule 60.02.” Holiday, 42 S.W.3d at 94. An untimely request
under Rule 60.02(1) or (2) may not be asserted under Rule 60.02(5).
Wallace v. Aetna Life & Cas. Co., 666 S.W.2d 66, 67 (Tenn.1984);
Holiday, 42 S.W.3d at 94; Henderson v. Kirby, 944 S.W.2d 602, 605
(Tenn. Ct. App. 1996). Relief under Rule 60.02(5) is not proper “simply
because relief under other provisions is time barred.” Wallace, 666 S.W.2d
at 67.
Furlough v. Spherion Atlantic Workforce, LLC, 397 S.W.3d 114, 127-28 (Tenn. 2013).
The Trial Court found that “[i]t is clear that [Father] simply signed an agreement
he now wishes to back out of and there is no relief available to him under the facts of this
case when the applicable law is addressed.” We agree. As stated in the authority quoted
above, mere dissatisfaction is not a ground for the kind of extraordinary relief permitted
under Rule 60.02. We affirm the Trial Court in its determination that Father is bound by
the terms of the MDA, including his alimony obligation.
We next address whether the Trial Court erred in modifying the parenting plan to
require Father to pay educational expenses. Father argues that this decision by the Trial
Court ignored Mother’s increased earnings since the divorce, as well as the fact that one
child had aged out of child support altogether. In response, Mother argues that the parties
consistently had sent their children to private school, and that the upward deviation
appropriately facilitated this practice for the remaining minor child. With respect to
upward deviations in child support for educational expenses, this Court has stated:
Decisions regarding extraordinary expenses and private school tuition are
very fact specific. Carlson v. Carlson, No. E2007-01276-COA-R3-CV,
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2008 WL 4735307, at *6 (Tenn. Ct. App. Oct. 27, 2008). “These expenses
may be, but are not required to be, divided between the parents according to
each parent’s [percentage of income].” Tenn. Comp. R. & Regs. 1240-02-
04-.07(2)(d). The use of the term “ ‘may’ grants the trial court discretion in
determining payment of private school tuition.” Martin v. Martin, No.
W2014-01007-COA-R3-CV, 2015 WL 2400583, at *6 (Tenn. Ct. App.
May 20, 2015) (no perm. app. filed ) (citing Johnson v. Johnson, No.
M2008-00236-COA-R3-CV, 2009 WL 890893, at *10 (Tenn. Ct. App.
Apr. 2, 2009)); see also Massey v. Casals, 315 S.W.3d 788, 797 (Tenn. Ct.
App. 2009) (“The award of such deviation is within the discretion of the
tribunal.”) “Trial courts have discretion in deciding whether to impose the
extraordinary expense of private school tuition on a party.” Johnson, 2009
WL 890893, at *11. A trial court can order payment of less than the full
amount of a child’s extraordinary educational expenses depending on the
proof in a particular case. Martin, 2015 WL 2400583, at *7. The trial
court is required to calculate the extraordinary educational expenses
separately and to add them to the base child support award. In re Andrea
A.R., No. M2011-00574-COA-R3-JV, 2012 WL 397475 at *7 (Tenn. Ct.
App. Feb. 7, 2012).
Henegar v. Henegar, No. M2015-01780-COA-R3-CV, 2016 WL 3675145, at *15 (June
29, 2016), no appl. perm. appeal filed.
The Trial Court found relative to this issue as follows:
The Court does find child support must be recalculated because of
Barbara having reached the age of majority. The Court finds the parties
originally agreed to an upward deviation in child support because of the
Father’s agreement to be responsible for a portion of the children’s private
school tuition. He also was responsible for 50 percent of the extracurricular
activity expenses. The Court finds it has been the practice in this family for
the children to receive a private school education. Both parents instituted
and abided by this practice. At the time of the entry of the Final Decree of
Divorce, Mr. Angelin was earning substantially more than Mrs. Wagoner-
Angelin and he found an equal division of tuition and extracurricular
activities expenses fair at that point. The Court finds that division still to be
fair and ORDERS him to pay one-half of the tuition utilizing school
expenses as an upward deviation.
Father argues on appeal that the Trial Court lacked sufficient justification for the
increased award to Mother for educational expenses. The evidence preponderates in
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favor of a finding that such an upward deviation is appropriate. As found by the Trial
Court, the $1,000 in child support originally agreed to by the parties included an upward
deviation because of Father’s agreement to be responsible for a portion of the children’s
private school tuition. The Trial Court’s decision to recalculate the child support because
only one child is now below the age of majority and ordering Father to pay one-half of
the one child’s tuition as an upward deviation is both consistent with the original
agreement of the parties and the evidence presented in this case. As noted by the Trial
Court, Father found an equal division of tuition and extracurricular activities to be fair at
the entry of the divorce even though Father was making substantially more than Mother.
We find no error by the Trial Court in finding this still to be fair even though Mother’s
financial situation has considerably improved. We, therefore, affirm the Trial Court in its
finding an upward deviation for educational expenses to be appropriate as the evidence
preponderates in favor of such a finding.
We next address whether the Trial Court erred in finding Father in contempt for
failure to adhere to the MDA. Father argues that the MDA provision requiring that he
resolve the flooding issues at the marital residence is ambiguous, and that he should not
be required to pay the $12,710 handyman Riley testified it would cost to correct the
flooding problem. Father argues also that Riley lacks suitable credentials and his
testimony should not even have been admitted.
Initially, with respect to the money awarded to Mother on this issue, we recognize
that it was granted in the context of a finding of civil contempt. However, we regard the
award as aimed toward ensuring Father’s compliance with the MDA as ordered by the
court. We addressed a similar scenario in another case, to wit: “The $50,000 judgment
did not constitute an award of damages but, rather, was designed to secure Husband’s
compliance with the final decree; as such, it was a reasonable exercise of the court’s
contempt power.” Dukes v. Dukes, No. M2014-00847-COA-R3-CV, 2015 WL 9946275,
at *6 (Tenn. Ct. App. Aug. 13, 2015), no appl. perm. appeal filed. We find Father’s
argument that the MDA language is ambiguous to be without merit. On the contrary, the
MDA is quite clear. Father’s homemade remedies did not fix the problem. The Trial
Court did not err in ordering Father to comply with his obligation under the MDA to
properly resolve the flooding problem at the marital residence by paying Mother the
$12,710 the evidence at trial reflected it would cost to accomplish this.
With regard to Riley’s credentials and testimony, we note the broad discretion
courts have in admitting evidence. “In general, questions regarding the admissibility,
qualifications, relevancy and competency of expert testimony are left to the discretion of
the trial court.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). We
note further that Father did not object to Riley’s testimony at trial. We affirm the Trial
Court on this issue.
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We next address whether the Trial Court erred in finding other violations of the
parenting plan by Father. The Trial Court ordered Father to pay $2,007 for half of the
$4,013.99 of extracurricular activities incurred by Mother, as well as $2,320.75, one half
of the $4,641.51 Mother incurred in medical expenses. However, Father argues he
agreed only to $1,549 of the medical expenses. Father argues also that he agreed only to
$1,078 worth of the extracurricular activities. Indeed, Father asserted below and now on
appeal that, after the divorce, he spent $4,062.60 on extracurricular expenses for which
Mother never repaid him, and that therefore no judgment on extracurricular expenses
should have been entered by the Trial Court at all.
Both non-emergency healthcare and extracurricular activities were to be joint
decisions by the parents under the terms of the permanent parenting plan. As we interpret
the permanent parenting plan then in effect, a party may not recover expenses for what
are supposed to be joint decisions that instead are taken unilaterally. The Trial Court, in
entering awards for Mother, does not appear to have considered whether both parents
agreed to what were supposed to have been joint decisions. As the Trial Court also
explicitly found both parties credible, we do not know what to make of the parties’
competing characterizations of their communications on joint decisions. We, therefore,
vacate the awards granted to Mother regarding violations of the permanent parenting plan
as to extracurricular or medical expenses, and remand for the Trial Court to determine
whether either parent owes the other any unpaid extracurricular or medical expenses. On
remand, the Trial Court is to consider and make specific determinations as to whether
both parents agreed to the extracurricular or non-emergency healthcare decisions at issue,
or, whether one parent proposed the idea and the other parent simply failed to exercise his
or her right not to agree. A parent’s failure neither to agree nor not to agree shall be
treated as agreement.
The final issue of Father’s we address is whether the Trial Court erred in awarding
attorney’s fees to Mother for collection of unpaid extracurricular and medical expenses.
In light of our resolution of the previous issue regarding violations of the permanent
parenting plan as to extracurricular and medical expenses, we vacate the Trial Court’s
award of attorney’s fees to Mother for enforcement of the permanent parenting plan.
Whether attorney’s fees, and, in what amount, may be ordered on remand, necessarily
will hinge upon the Trial Court’s fresh determination of which parent owes what as to
extracurricular or medical expenses.
We next address Mother’s issue of whether the Trial Court erred in declining to
find Father in contempt for not paying one-half of her attorney’s fees in the underlying
divorce action as provided in the MDA. Father argues that Mother already was
compensated for her attorney’s fees through the division of the marital estate. The Trial
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Court did not make explicit findings regarding this issue. Therefore, on remand, the Trial
Court is to set forth findings of fact and conclusions of law as to the issue of whether
Father is in contempt for not paying a portion of Mother’s attorney’s fees in connection
with the MDA and final decree of divorce.
To summarize, we affirm the Trial Court (1) in its determination that Father is
bound by the terms of the MDA, including the alimony provision; (2) the Trial Court in
its imposing an upward deviation for educational expenses from Father’s basic child
support; and, (3) that Father was in contempt for failure to adhere to the MDA by his
failure to effect the required housework—most notably failing to resolve the flooding
problem, for which the Trial Court’s order for Father to pay $12,710 to fix the problem is
affirmed. We vacate and remand on the issues of extracurricular and medical expenses,
as well as attorney’s fees related to those issues, pending a fresh determination by the
Trial Court concerning compensation only for any unpaid extracurricular or medical
expenses agreed upon by the parties after being given a genuine opportunity to agree or
disagree. Finally, the Trial Court is to make findings of fact and conclusions of law as to
whether Father is in contempt for not paying one-half of Mother’s attorney’s fees as
provided for in the MDA.
Conclusion
The judgment of the Trial Court is affirmed, in part, and vacated, in part, and this
cause is remanded to the Trial Court for further proceedings consistent with this Opinion
and for collection of the costs below. The costs on appeal are assessed one-half equally
between the Appellant, Randall Jon Angelin, and his surety, if any, and the Appellee,
Mary Wagoner-Angelin.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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