Amy Lynn Phelps v. Emerson John Phelps

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 18, 2011
AMY LYNN PHELPS v. EMERSON JOHN PHELPS
Appeal from the Chancery Court for Maury County
No. 09-027 Stella L. Hargrove, Judge
No. M2010-00856-COA-R3-CV - Filed June 24, 2011
The trial court granted the wife a divorce after a marriage of nineteen years, awarded her
most of the marital property including the marital home, and made her wholly responsible
for the mortgage debt on the residence. The court awarded the wife the husband’s share of
the equity in the home in the form of alimony in solido. The husband argues on appeal that
the property division was inequitable. He also contends that the trial court should have
awarded alimony to him rather than to the wife. We affirm the trial court’s division of
marital property and its determination not to award alimony to the husband, but we modify
its judgment to include husband’s share of the equity in the marital home in the property
division, rather than as a separate award of alimony in solido.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed as Modified
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.
Stacy D. Attkisson, Columbia, Tennessee, for the appellant, Emerson John Phelps.
Wesley Mack Bryant, Columbia, Tennessee, for the appellee, Amy Lynn Phelps.
OPINION
I. A T ROUBLED M ARRIAGE
Emerson John Phelps (“Husband”) and Amy Lynn Phelps (“Wife”) were married in
their home state of New York on August 25, 1990. Husband was twenty-one years old at the
time of the marriage and Wife was eighteen. Wife earned an associates degree in nursing,
became a registered nurse, and began working at a hospital. Husband took a job removing
asbestos, which paid well, but Wife was worried about the health effects of the work and
asked Husband to quit, which he did.
The parties came to Tennessee to visit with Wife’s aunt and uncle. They both liked
the area and decided to relocate. They moved to Columbia, Tennessee, in 1993, and Wife
quickly found a job as a nurse. Husband worked odd jobs and was eventually hired to work
at the Maury County Sheriff’s Department. Husband’s father died in 1997, and Husband
suffered a “major breakdown.” The parties returned to New York in 1998, and they moved
into a cabin owned by Husband’s mother. They eventually purchased the cabin, using money
that Wife had saved by working overtime. The price was $35,000, which was well below the
cabin’s market value. A 1929 Model A Ford parked in the garage was later deemed by the
court to be marital property.
The only child of the couple, a daughter, was born on October 17, 2001. Wife was
working as a school nurse at the time, and she took time off to care for the child, returning
to work at the beginning of the following school year. The parties agreed that Husband
would stay home and take care of the child after Wife returned to work, but Husband began
showing symptoms of obsessive-compulsive disorder. According to his own appellate brief,
he “felt the need for the home to be spotless and germ-free for [the child] and himself. He
began to go overboard with germ issues and would wash his hands until they bleed.” Other
bizarre behavior included not allowing other children to play with the child or touch her toys,
waking her up at two or three in the morning to shower because she was not clean enough,
and discussing his death with her, asking how she would feel if he were dead.
The parties moved back to Tennessee in 2005, and Wife immediately found a job at
Maury Regional Hospital. She worked a full-time schedule which only included weekend
hours. Husband was unable to find immediate employment, but was eventually rehired at the
Sheriff’s Department. Wife testified that Husband stayed in bed or on the couch until he was
employed, so she had to take care of their child from Monday through Friday. In 2006, the
parties bought a home in Columbia for $190,000. They subsequently sold the home in New
York for $95,000 and used the proceeds to pay down the mortgage on the marital home.
There was a balance of $42,000 on the mortgage at the time of trial.
Needless to say, Husband’s worsening mental illness took a toll on the parties’
marriage. Things apparently came to a head in December 2008. Wife had previously talked
to Husband about leaving him, and he had consistently responded by saying that he would
kill himself if she left.
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On December 16, 2008, Wife told Husband she wanted a divorce. The following
morning, Husband, who was still employed by the Maury County Sheriff’s Department,
carried a handgun as he walked through the kitchen of the parties’ home, where the minor
child was having breakfast. He went out into backyard, held the gun to his head, and
threatened to kill himself. The SWAT team was called, and after about 45 minutes they were
able to talk him into putting the gun down. He was taken to the hospital and transferred for
psychiatric treatment. That episode led to an agreed restraining order that prohibited
Husband from carrying a firearm or having contact with Wife or with the minor child.
Husband also agreed to go to counseling.
II. D IVORCE P ROCEEDINGS
On January 15, 2009, Wife filed a complaint for divorce in the Chancery Court of
Maury County. She alleged as grounds inappropriate marital conduct or, in the alternative,
irreconcilable differences. She asked the court to equitably divide the marital property, to
award her custody of the parties’ daughter, and to order Husband to pay child support. She
also asked for an award of alimony. In his answer and counter-claim, Husband admitted that
there were irreconcilable differences between the parties and that their marriage was
irretrievably broken, but he alleged that Wife had abandoned him. He asked for custody of
the child and for an award of alimony.
The divorce hearing was conducted on October 20, 2009. Both parties testified at
length, and there also was brief testimony by the child’s counselor and Maury County Sheriff
Enoch George. No court reporter was present, so our understanding of what transpired at the
hearing is derived from the court’s Memorandum and Order and from the Statement of the
Evidence that was prepared in accordance with Tenn. R. App. P. 24(c).1 We also have the
benefit of the transcript of the discovery deposition of Husband’s certified mental health
counselor, which was admitted into the record by agreement of the parties, and the child’s
confidential psychological record.
1
According to the statement of the evidence, the child’s counselor testified that she sees the child
once every other week because of anxiety issues. She said that the child talked about missing her father and
about how they used to play together. She also testified that the child believed it was her responsibility to
keep her father from hurting himself, and that she blamed herself for his suicide attempt. The counselor
recommended that the child be able to visit with her father, but that the visits be scheduled on a limited basis
and under supervision, with continued counseling for both the child and her father.
Sheriff George testified that he knew both parties and that they were good people. He also testified
that “he would rehire Mr. Phelps if he was the best man for any available position.”
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At the conclusion of the hearing, the trial court named Wife temporary primary
residential parent and set supervised visitation for Husband, taking the other issues in the
case under advisement. On November 16, 2009, the court filed a Memorandum setting out
its findings of fact and conclusions of law. The court discussed Husband’s psychological
history and described a long course of irrational conduct by Husband, much of which was
played out in the presence of the child. We have already discussed some of that conduct and
do not need to elaborate any further.
The court noted Husband’s complaint that Wife was cold and distant with him, but
it found that his complaints “pale in the face of his cruel and unusual treatment of Wife and
their child.” The court accordingly granted Wife a divorce on the ground of inappropriate
marital conduct and named her as the child’s primary residential parent, with Husband to pay
child support in accordance with the guidelines. Because Husband had not earned very much
money after 1998, the court imputed income to him based on a full-time job at minimum
wage, resulting in a child support obligation of $328 per month.2 Husband was also given
the right to exercise supervised parenting time with the child.
The trial court then turned to the division of marital property, discussing every one of
the statutory factors set out in Tenn. Code Ann. § 36-4-121(c) and applying them to the
testimony it had heard. The parties had not accumulated very much in the way of marital
assets, and the marital estate mostly consisted of the equity in the marital home, the furniture
in that home, a 2005 Chevrolet Avalanche, the 1929 Model A Ford, and Wife’s 403(b)
retirement account, which had a value of $5,187.87.
Wife had presented an inventory of the marital assets to the court, together with her
proposed valuations as to each asset. She also proposed a specific division of those assets.
The trial court declared that it was adopting the valuations proposed by Wife and awarded
her all the property she requested, as well as the guest room furniture and the child’s
furniture, which had a purported total value of $1,500.3
2
The court noted that there were no income and expense statements in the record reflecting Wife’s
or Husband’s current income. However, for the purposes of calculating child support, the parties had agreed
to use a figure of $52,000 a year for Wife’s income as a registered nurse.
3
There is an exhibit in the record titled “Wife’s Statement of Marital Property,” which contains
columns for both Husband’s and Wife’s values of the property. There is no separate statement by Husband.
Wife’s statement shows wide disparities as to the listed valuations for some of the property. For example,
Wife gave a value of $25 to “Holiday decorations” and the same to “Digital camera.” The values listed in
Husband’s columns for those same items were $1,000 and $500 respectively.
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For the purposes of this appeal, the most important component of the property division
was the trial court’s award to Wife of the marital home, which was valued at $171,000. The
court declared that it was awarding Husband’s share of the equity in the marital home to Wife
in the form of alimony in solido. Wife was also made entirely responsible for the $42,000
balance owed on the mortgage as well as all the other marital debts, totaling an additional
$17,384. Husband was not held responsible for any marital debt, but he was declared liable
for $3,280 in past due child support, which was ordered to be paid in sixty days. Wife was
awarded the entire amount in her 403(b) account. Husband was awarded most of the
household furnishings and the antique automobile, which the court valued at $11,000.
The Final Decree of Divorce incorporated the trial court’s Memorandum, and was
entered on January 12, 2010. Husband subsequently filed a motion for new trial or to alter
judgment, which focused on the alimony in solido awarded by the trial court. The court
denied the motion, stating that even if an award of alimony in solido was not appropriate,
the factors governing the equitable division of marital property would still weigh in favor of
awarding Wife all the equity in the marital home, free from any claim by Husband. This
appeal followed.
III. A NALYSIS
A. The Standard of Review
Our review on appeal of the trial court’s findings of fact is de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v. Bogan, 60 S.W.3d
721, 727 (Tenn. 2001); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review
a trial court’s conclusions of law de novo, with no presumption of correctness. Whaley v.
Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).
B. Valuation and Division of Marital Property
Tennessee Code Annotated § 36-4-121(a)(1) authorizes the trial court in actions for
divorce or for legal separation, to equitably divide, distribute, or assign the marital property
“without regard to marital fault in proportions as the court deems just.” See Jolly v. Jolly,
130 S.W.3d 783, 785 (Tenn. 2004). Our legislature has set out a list of relevant factors for
the court to consider when dividing marital property. These are:
(1) The duration of the marriage;
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(2) The age, physical and mental health, vocational skills,
employability, earning capacity, estate, financial liabilities and financial
needs of each of the parties;
(3) The tangible or intangible contributions by one (1) party to the
education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital
assets and income;
(5) The contribution of each party to the acquisition, preservation,
appreciation or dissipation of the marital or separate property, including
the contribution of a party to the marriage as homemaker, wage earner
or parent, with the contribution of a party as homemaker or wage earner
to be given the same weight if each party has fulfilled his or her role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division
of property is to become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the equities
between the parties.
Tenn. Code Ann. § 36-4-121(c)
The trial court’s task is to make an equitable, or fair, distribution of property. “The
trial court is empowered to do what is reasonable under the circumstances and has broad
discretion in the equitable division of the marital estate.” Keyt v. Keyt, 244 S.W.3d 321, 328
(Tenn. 2007) (citing Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003)). Although
Tennessee Code Annotated § 36-4-121(a)(1) requires the court to order an equitable division
of marital property, an equitable division is not necessarily an equal division. Larsen-Ball
v. Ball, 301 S.W.3d 228, 231 (Tenn. 2010); Robertson v. Robertson, 76 S.W.3d 337, 341
(Tenn. 2002); Smith v. Smith, 984 S.W.2d, 606, 609 (Tenn. Ct. App. 1997).
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Because the division of marital property is “not a mechanical process,” and because
decisions regarding the division of marital property are fact-specific and many circumstances
surrounding the property and the parties play a role, a trial court has a great deal of discretion
concerning the manner in which it divides marital property. Keyt, 244 S.W.3d at 328; Jolly
v. Jolly, 130 S.W.3d, 783, 785 (Tenn. 2004); Flannary, 121 S.W.3d at 650; Smith, 984
S.W.2d at 609.
As a general matter, reviewing courts will evaluate the fairness of a property division
by its final results. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990).
Further, “unless the court’s decision is contrary to the preponderance of the evidence or is
based on an error of law, we will not interfere with the decision on appeal.” Sullivan v.
Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002) (citing Goodman v. Goodman, 8
S.W.3d 289, 298 (Tenn. Ct. App. 1999)). Thus, appellate courts ordinarily defer to the trial
court’s division unless it is inconsistent with the factors set forth in Tenn. Code Ann. § 36-4-
121(c) or is not supported by a preponderance of the evidence. Jolly, 130 S.W.3d at 785-86.
Husband complains that the trial court’s division of marital property and debt in this
case was inequitable because it was very one-sided in favor of Wife. He also claims that the
trial court erred in its valuation of the marital assets, but notes that even according to the trial
court’s valuations, Wife received marital property with a total value of $193,221.87, while
the total value of the property awarded to him was only $25,225. He accordingly asks this
court to reverse the trial court and award him half of the marital property. He also argues that
the factors governing spousal support preponderate against the trial court’s award of alimony
to Wife. We will briefly discuss the question of valuation first.
Decisions regarding the value of marital property are questions of fact, and we will
not second-guess them on appeal unless they are not supported by a preponderance of the
evidence. Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App. 2007) (citing Kinard v.
Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998)). Husband asserts that Wife presented
lower estimates of the value of the property she wished the court to award to her and higher
estimates of the value of the property she wished the court to award to Husband, in order to
reduce the appearance of disparity in values between their respective awards, and that the
trial court erred by adopting her valuations in toto.
We are necessarily constrained in our discussion of valuation by the limitations
imposed on us by the state of the record. For example, Husband notes that the marital home
was purchased for $190,000, and he complains that the trial court accepted Wife’s valuation
of $171,000, even though there is no indication in the Statement of the Evidence that she
offered any explanation for the discrepancy. There is no indication in the record, however,
that Husband challenged Wife’s valuation of the marital home at trial or offered
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contradictory evidence of value. Under Tenn. R. App. P. 13(c), this court is only allowed to
“consider those facts established by the evidence in the trial court and set forth in the record.”
Husband also takes issue with the trial court’s valuation of $11,000 for the 1929
Model A Ford. He acknowledges Wife’s testimony that the parties found a similar model
car on the internet for that price. He testified, however, that the car is completely
disassembled, missing parts and rusted over, and he estimated that it was worth no more than
$2,000 in its current condition. However, in the face of conflicting opinions regarding the
value of a marital asset, the trial court may place a value on the asset that is within the range
of the values presented by the competent evidence. Owens, 241 S.W.3d at 486 (citing Watters
v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997); Brock v. Brock, 941 S.W.2d 896,
902 (Tenn. Ct. App. 1996)).
All of the trial court’s valuations were supported by competent evidence. Thus, the
record does not contain sufficient countervailing evidence to overcome the presumption of
correctness that accompanies the trial court’s findings of fact. Further, whether or not we
accept Husband’s valuations as correct, it remains beyond dispute that under the trial court’s
order, Wife received a far greater share of the marital assets than did Husband. Thus, the
question of exact valuation is only marginally relevant to our inquiry into the equity of the
property division.
The trial court correctly noted that this was a long-term marriage, and that in the
absence of other countervailing considerations, that factor supports a presumption that the
marital assets should be equally divided. See Dellinger v. Dellinger, 958 S.W.2d 778, 781
(Tenn. Ct. App. 1997) (citing Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. Ct.
App. 1990)). However, the court found that under the extraordinary circumstances of this
case, an equal division was not appropriate, citing in particular “[t]he contribution of each
party to the acquisition, preservation, appreciation or dissipation of the marital or separate
property including the contribution of a party to the marriage as homemaker, wage earner or
parent, . . . .” Tenn. Code Ann. § 36-4-121(c)(5).
It is undisputed that Wife has always been the family’s primary wage earner and that
Husband earned very little over the course of the marriage. Husband had apparently testified,
however, that he was a “stay-at-home dad,” and implied that he had been the primary
caretaker of the parties’ child. The trial court found his testimony not to be credible, and
concluded that Husband had contributed very little to the parenting of the child. Wife thus
had to serve not only as the family’s main breadwinner, but also as the primary parent. In
light of her testimony as to periods of time when Husband was unable to get out of bed or
off the couch, it is likely that she functioned as the primary homemaker as well.
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Husband also implies that the trial court should have considered the profit the parties
enjoyed from the sale of the cabin that they bought from his mother at a below-market price
as a significant contribution to the marriage on his part. The trial court did acknowledge in
its Memorandum the role played by that sale in the financing of the marital home, but it also
noted the long hours that Wife worked to earn enough to be able to buy the cabin, as well as
to make the down payment on the marital home. We can find no error in the trial court’s
determination that Wife’s contribution to the acquisition and preservation of the marital
property far exceeded Husband’s and that it justified awarding a far larger share of that
property to her than to Husband on that determination.
In contrast to “the contribution of each party, . . .” which is a retrospective factor,
many of the other statutory factors for division of marital property are prospective. That is,
they look at the relative positions of the parties after divorce, including their mental and
physical conditions and their ability to support themselves without the assistance of the other
spouse. If these factors were considered in isolation, then Husband would likely be entitled
to a greater share of the marital estate than he was awarded. Unlike Wife, who has a college
degree and professional certification, Husband does not have a college education, and he has
experienced unfortunate mental health issues, but is now in counseling.
However, Husband has managed to find and perform a variety of jobs, and there was
no testimony as to any physical problems that might limit his employability.4 Further, his
certified mental health counselor testified that he had achieved a measure of control over his
obsessive-compulsive disorder, which appears to have been at its worst when he was staying
home with his young daughter. The evidence therefore suggests that he has the ability to
support himself.
The trial court’s memorandum shows that it considered all of the statutory factors
before coming to the conclusion that the post-divorce economic circumstances for both
parties were problematic and that “it will be financially difficult for Wife to live separately
and provide for herself and the child with very little, if any, financial assistance from
Husband towards child support.” The court accordingly relied on the relative contribution
of each party to the acquisition of the marital assets as the decisive factor in its decision to
award the marital home to Wife, free of any claims by Husband, but subject to a mortgage
for which she would assume full responsibility.
4
Husband’s brief on appeal states that he “worked at several jobs, including McDonalds, Pepsi,
janitorial services, and he also supervised handicapped people.” The record shows Husband had a job
removing asbestos and worked with the Sheriff’s Department. Husband testified that he was working as a
substitute teacher and doing odd jobs at the time of trial.
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Wife has the greater need for the home since she is raising the parties’ child there, and
she is in a far better position than Husband to pay the mortgage and the other household
expenses. Husband does not argue that he should have been awarded the home instead of
Wife, but he suggests that the trial court should have adjusted the division of marital property
somehow, so he could receive an equal share of the marital assets. However, the marital
home was the most valuable asset in the marital estate by far, worth more than all the other
assets combined. To even come close to equalizing the property division, the trial court
would have had to order Wife to either sell the only home the minor child has ever known,
or incur substantial debt, thereby greatly increasing her financial burden. In its Final Order,
the court declared that such a solution “would not only be inequitable, but unconscionable
. . . .” In sum, the evidence does not preponderate against the trial court’s division of marital
property.
C. Alimony
The Final Order in this case declared that “Wife shall receive as alimony in solido half
of the equity in the former marital residence, representing Husband’s portion of equity in said
residence.” Husband correctly argues that the trial court erred by awarding any form of
alimony to Wife, since he is clearly the economically disadvantaged spouse, and he has the
greater need, while Wife has the greater ability to pay.
Tenn. Code Ann. § 36-5-121(a) authorizes our courts to award alimony in divorce
cases “to be paid by one spouse for the benefit of the other, or out of either spouse’s property,
according to the nature of the case and the circumstances of the parties.” Other sections of
the same statute refer numerous times to the “relatively disadvantaged spouse” as the one
who is entitled to such support. It is undisputed that Husband is at an economic disadvantage
relative to Wife, and thus it is inappropriate to order him to pay alimony to Wife.
Tenn. Code Ann. § 36-5-121(i) sets out a list of factors for the court to consider in
determining whether an alimony award is warranted, and if so, the type and amount of such
an award. These factors are similar to the ones set out in Tenn. Code Ann. § 36-4-121(c)
to assist the court in reaching an equitable division of marital property, except that in making
an alimony decision, the court may consider “[t]he relative fault of the parties, in cases where
the court, in its discretion, deems it appropriate to do so.” Tenn. Code Ann. § 36-5-
121(i)(11).
Our courts have stated many times that in making an alimony determination the most
important factors to consider are the obligee spouse’s need and the obligor spouse’s ability
to pay. Robertson, 76 S.W.3d at 342; Bogan, 60 S.W.3d at 730; Riggs v. Riggs, 250 S.W.3d
453, 457 (Tenn. Ct. App. 2007); Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct.
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App. 1984). Although the trial court is required to consider all the relevant factors, it
nonetheless, “is afforded wide discretion regarding the award of spousal support, and we will
reverse the court’s findings only upon determining that such discretion ‘has manifestly been
abused.’” Hill v. Hill, M2007-00471-COA-R3-CV, 2008 WL 1822453 at *7 (Tenn. Ct. App.
Apr. 23, 2008) (no Tenn. R. App. P. 11 application filed) (citing Hanover v. Hanover, 775
S.W.2d 612, 617 (Tenn. Ct. App. 1989)).
Husband also argues that the trial court should have awarded him alimony. We find
that the trial court did not abuse its discretion in declining to award alimony to Husband. We
agree with Husband, however, that under the circumstances of this case, it was inappropriate
to award alimony to Wife. However, that does not mean he is entitled to half the equity in
the marital home. Because the marital home was acquired during the course of the marriage,
and because the equity in it was acquired by payments made during the marriage, both are
included in the statutory definition of marital property:
“Marital property” means all real and personal property, both tangible and
intangible, 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 a complaint for divorce . . . .
Tenn. Code Ann. § 36-4-121(b)(1)(A).
The trial court was therefore authorized to determine the proper disposition of the
marital home and the equity in the home pursuant to its authority under Tenn. Code Ann.
§ 6-4-121(a)(1) to divide marital property equitably. As we stated above, an equitable
division is not necessarily an equal division. In this case, the most equitable division is one
which leaves the marital home to Wife, free of any claims by Husband, but subject to a
mortgage for which she assumes full responsibility, with Wife also assuming all
responsibility for the other marital debts.5
We thus affirm the award of the marital home and all the equity in it to Wife, but we
modify the trial court’s judgment by making that award part of the division of marital
property rather than a separate award of alimony.
5
The trial court itself recognized the problematic nature of its alimony award by stating in its order
denying Father’s motion to alter or amend that “even if this court erred in its award of alimony in solido to
Wife, that this Court would find that an equitable division of the martial (sic) property in this case would
mandate that Wife should retain the former marital residence free and clear of any claim by Husband.”
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IV.
The judgment of the trial court is affirmed as modified. We remand this case to the
Chancery Court of Maury County for any further proceedings necessary. Tax the costs on
appeal to the appellant, Emerson John Phelps.
_________________________________
PATRICIA J. COTTRELL, JUDGE
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