Janet Lynnette McCormick v. Donny Joe McCormick

03/04/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 11, 2020 Session
JANET LYNNETTE MCCORMICK v. DONNY JOE MCCORMICK
Appeal from the Chancery Court for Henderson County
No. 23552 James F. Butler, Chancellor
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No. W2019-00647-COA-R3-CV
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Wife appeals the trial court’s judgment, arguing that the trial court erred in treating an
obligation contained in the parties’ marital dissolution agreement as an alimony
obligation rather than a division of marital debt that was extinguished upon the
foreclosure of the subject property. In the alternative, Wife contends that the trial court
erred in not further reducing or eliminating her alimony obligation. We conclude that
Wife waived her arguments concerning the proper classification of this obligation as a
marital debt by not raising this argument in the trial court. As to the trial court’s decision
regarding modification of Wife’s alimony, we vacate the trial court’s ruling and remand
for an order fully compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; and Vacated in Part
J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and CARMA DENNIS MCGEE, JJ., joined.
Donald Capparella and Kimberly Macdonald, Nashville, Tennessee, for the appellant,
Janet Lynnette McCormick.
Jack S. Hinson and Samuel W. Hinson, Lexington, Tennessee, for the appellee, Donny
Joe McCormick.
OPINION
I. BACKGROUND
Plaintiff/Appellant Janet Lynnette McCormick (“Wife”) and Defendant/Appellee
Donny Joe McCormick (“Husband”) were divorced in 2012. Pursuant to the marital
dissolution agreement (“MDA”) entered into by the parties at the time of divorce, Wife
was required to
pay alimony to Husband on the following terms: Wife shall pay to
Husband, directly, in advance, as alimony in futuro: the monthly mortgage
payment, real estate taxes, and homeowner’s insurance on the property
located at 8680 Highway 100, Scotts Hill, Henderson County, Tennessee.
All payments shall be paid in a timely manner. Any penalty or interest
incurred due to late or delinquent payment shall be the sole responsibility of
Wife.
Wife was also ordered to assume the indebtedness of all the marital property, including
the marital home, as well as any Internal Revenue Service (“IRS”) debts.
On September 13, 2017, Husband filed a petition for contempt against Wife in the
Henderson County Chancery Court (“the trial court”). Therein, Husband alleged that
Wife was earning $116,000.00 per year, but that she had never paid any alimony
payments as required by the above provision, resulting in an approximately $66,000.00
arrearage. As such, Husband asked that Wife be held in contempt and that he be awarded
attorney’s fees.
On November 13, 2017, Wife filed an answer admitting that she had been ordered
to pay the mortgage under the MDA but denying that an arrearage existed. A few months
later, on February 20, 2018, Wife filed a petition seeking a modification of what she
characterized as “alimony in solido.” Therein, Wife alleged that at the time of the
divorce, she was earning approximately $400,000.00, while her income had undisputedly
decreased to only $116,000.00. Wife further noted that she was solely responsible for the
parties’ debts and the expenses related to the minor children. Moreover, Wife averred that
the property for which she was ordered to pay the mortgage was being foreclosed on and
that Husband’s expenses had reduced. As such, Wife submitted that a substantial and
material change in circumstances occurred to either terminate or substantially reduce her
alimony obligation. In the conclusion of her petition, Wife specifically asked the trial
court to “modif[y] the existing alimony in futuro obligation set out” in the parties’ MDA
and that she be awarded attorney’s fees.
Husband answered the petition on March 14, 2018. Therein, Husband admitted
that the property had been foreclosed but alleged that he had acquired substitute housing
that was below the marital standard of living and that he needed the alimony to secure
proper housing.
A hearing on the pending petitions occurred on October 18, 2018. According to a
later filed Statement of the Evidence, the parties agreed following the divorce that Wife
would pay the mortgage and expenses directly, rather than to Husband. Husband was
awarded a life estate in the property. Eventually, however, Wife fell behind on the
payments and filed bankruptcy; Husband filed no claim against Wife in the bankruptcy
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action. According to Husband, however, the bankruptcy action was dismissed.
Eventually, the home was foreclosed. Husband left the property on February 23, 2018.
Wife testified that at the time of the divorce she was earning approximately $400,000.00
per year, but that she suffered a nearly $300,000.00 reduction in income following the
divorce. Wife also owed approximately $180,000.00, plus a penalty, to the IRS, which
debt Wife testified she had not been able to service since 2017.
Around the time of the divorce, Husband suffered a stroke and became disabled.
His only income was $1,466.00 per month in disability benefits. At the time of trial,
Husband was living in a mobile home in which he did not pay rent. Following the
hearing, on October 24, 2018, Husband filed his affidavit of income and expenses
indicating a deficit of $931.00 per month. On November 13, 2018, Wife filed an affidavit
of income and expenses demonstrating a monthly deficit of $45.46.
The trial court issued a letter opinion on or about January 25, 2019. A written
order incorporating the trial court’s letter ruling was entered on March 21, 2019. Therein,
the trial court ruled that the MDA imposed an alimony in futuro obligation on Wife, that
Wife was in contempt for non-payment, and that Husband was entitled to attorney’s fees.
The trial court then noted that the parties stipulated that the amount due originally under
MDA was $1,623.33 per month. After considering both parties income and expenses, the
trial court reduced Husband’s expenses by $88.00 and Wife’s by $822.00, finding that
Wife’s credit card expenses were “probably” duplicative of other claimed expenses.
Based on these expenses, the trial court found that Wife had the ability to pay $771.54
per month and Husband had a need of $843.00 per month. The trial court therefore
awarded Husband alimony of $700.00 per month, plus $200.00 per month in arrearages.
Finally, the trial court awarded Husband $3,500.00 in attorney’s fees.
Wife thereafter timely appealed to this Court. On June 12, 2019, Wife submitted a
Statement of the Evidence. No objection was lodged as to this statement, and it was
approved by virtue of the trial court’s silence. See Tenn. R. App. P. 24(f) (stating that
when the trial court does not act “as soon as practicable after the filing thereof or after the
expiration of the 15-day period for objections by appellee . . . the transcript or statement
of the evidence . . . shall be deemed to have been approved except in cases where such
approval did not occur by reason of the death or inability to act of the judge”).
II. ISSUES PRESENTED
Wife raises the following issues in this appeal, which are taken from her brief:1
1. Whether the trial court erred as a matter of law in interpreting the
parties’ marital dissolution agreement as containing an alimony award
1
Wife was represented by different counsel in the trial court than on appeal.
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when (1) the marital home payments labeled as “alimony in futuro”—
consisting of the mortgage, property taxes, and home insurance—do not
satisfy any form of alimony recognized in Tennessee; (2) federal tax law
precludes the classification of the marital home payments as alimony
because the payments were not “to” or “on behalf of” the recipient
spouse; and (3) the marital home payments represent the assignment of
a debt?
2. Whether the trial court erred as a matter of law in modifying the debt of
the marital home payments when (1) the bank previously foreclosed on
the marital home; (2) Tennessee law does not permit a property
assignment to be later modified; and (3) any “modification” of the debt
assignment would result in a new alimony obligation created
approximately seven years after the entry of the final divorce decree?
3. In the alternative, whether the trial court abused its discretion by failing
to apply the required statutory analysis under Tenn. Code Ann. § 36-5-
121(i) and arbitrarily applying the facts to the law, resulting in an
alimony obligation beyond the means of the payor spouse?
III. DISCUSSION
A.
Wife raises several issues in this case concerning the trial court’s ruling that the
obligation contained in the MDA was alimony in futuro rather than a property division.
In particular, Wife argues that the trial court erred in classifying the mortgage payments
due under the MDA as alimony, as the payments do not fit squarely within any of the
four recognized types of alimony and the label given to the payments under the MDA is
not dispositive. Wife further contends that the trial court erred in failing to consider
federal tax law and other federal precedent in ruling that this obligation constituted
alimony rather than an allocation of marital debt. According to Wife, when Wife’s
obligation is considered through the proper lens, it is clear that her obligation to pay for
the mortgage on the marital home extinguished when the home was foreclosed. Finally,
Wife asserts that the trial court erred in awarding Husband alimony of $700.00 per month
when the MDA contained no alimony obligation that could be modified.
Husband counters that these arguments were never raised in the trial court and are
therefore waived on appeal. Rule 13(b) of the Tennessee Rules of Appellate Procedure
provides that appellate “[r]eview generally will extend only to those issues presented for
review.” Based on this rule, the Tennessee Supreme Court very recently reiterated that
“‘[a]ppellate review generally is limited to issues that a party properly preserves for
review by raising the issues in the trial court and on appeal.’” State v. Vance, No.
M2017-01037-SC-R11-CD, --- S.W.3d ---, 2020 WL 896735, at *17 (Tenn. Feb. 25,
2020) (quoting State v. Minor, 546 S.W.3d 59, 65 (Tenn. 2018) (citing Tenn. R. App. P.
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13(b)). As such, “[i]t has long been the general rule that questions not raised in the trial
court will not be entertained on appeal[.]” Lawrence v. Stanford, 655 S.W.2d 927, 929
(Tenn. 1983). Thus, both “issues and arguments not raised or asserted in the trial court
may not be raised for the first time on appeal.” Dog House Investments, LLC v. Teal
Properties, Inc., 448 S.W.3d 905, 915 (Tenn. Ct. App. 2014) (citing Barnes v. Barnes,
193 S.W.3d 495, 501 (Tenn. 2006)); see also Powell v. Cmty. Health Sys., Inc., 312
S.W.3d 496, 511 (Tenn. 2010) (“It is axiomatic that parties will not be permitted to raise
issues on appeal that they did not first raise in the trial court.”). Accordingly, issues raised
in this manner are waived. Fowler v. City of Memphis, 514 S.W.3d 732, 743 (Tenn. Ct.
App. 2016).
Although we agree that Husband, as the party invoking waiver, has the burden to
show its application, we must conclude that this burden is met in this case. See Fayne v.
Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). Here, the technical record consists of a slim
forty-one pages. The only pleadings or written documents filed by Wife prior to trial
were her answer to the contempt petition, her petition to “modify alimony in solido,” and
her affidavit of income and expenses. Nowhere in any of these filings does Wife make
any argument even remotely raising the contention that the mortgage payments obligation
contained in the MDA constitutes a division of marital property or debt, rather than an
award of alimony. Instead, Wife’s pleadings treat this issue as a modifiable type of
alimony. A periodic payment that constitutes a division of marital property is, of course,
nonmodifiable. See Towner v. Towner, 858 S.W.2d 888, 892 (Tenn. 1993) (holding that
a periodic payment was a division of marital property and therefore not subject to
modification).2 Moreover, Wife’s Statement of the Evidence does not indicate that this
argument was raised orally during the hearing on the pending petitions.
This is more than simply failing to place the correct label on Wife’s argument. Cf.
Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 144 (Tenn. 2001) (holding that using the
incorrect label does not result in waiver when the contents of the argument were properly
made in the trial court). Here, Wife never asked the trial court to interpret the obligation
in the MDA as a division of marital property; rather, she herself asserted all along that it
constituted a type of alimony and that it was subject to modification based on changed
circumstances. Moreover, the record that Wife has presented to this Court gives no
indication that Wife presented any federal law to the trial court or asked the trial court to
interpret the MDA pursuant to federal tax law.
Unfortunately for Wife, this situation involves the convergence of two well-settled
principles of Tennessee jurisprudence. First, it is not the court’s duty to research or
2
Wife characterized the alimony as in solido in her request for modification. Alimony in solido is
also not subject to modification. See Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn. 2001) (holding that
unlike alimony in solido, alimony in futuro is subject to modification). The trial court, however, found
that the modification of alimony request was proper because the alimony constituted an alimony in futuro
obligation, which Husband has not raised as an error on appeal.
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construct an argument for a litigant. See Sneed v. Bd. of Prof’l Responsibility of Sup.
Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate,
to research or construct a litigant’s case or arguments for him or her, and where a party
fails to develop an argument in support of his or her contention or merely constructs a
skeletal argument, the issue is waived.”). Second, this Court “functions as an error-
correcting intermediate appellate court.” Mosley v. State, 475 S.W.3d 767, 774 (Tenn. Ct.
App. 2015) (citation omitted). As such, our purpose is generally to correct errors
committed by the trial court. Id. (“Because Mr. Mosley was entitled to file an amended
complaint without leave of court, there is simply no error committed by the Commission
that this Court can correct.”). Here, Wife simply did not seek an interpretation of the
MDA obligation as a division of marital debt rather than an award of alimony; in fact,
Wife did not ask the trial court to interpret the MDA at all. Thus, the trial court was under
no duty “fill in the gaps” of Wife’s argument by construing her actual request to modify
alimony as in fact a request to interpret the obligation as an allocation of marital debt.
Brooks v. Bd. of Prof’l Responsibility, 578 S.W.3d 421, 431 (Tenn. 2019) (Lee, J.,
concurring in part and not joining in part) (“A party, not the Court, should identify the
issues and provide adequate legal authority and argument. When a party fails to do so, it
is not the Court’s role to step in and fill in the gaps.”) (citation omitted); cf. Vance, 2020
WL 896735, at *18 (“A trial court cannot evaluate an objection that is not made.”). Nor
was the trial court required to research the impact of federal law on Wife’s illusory
request. And having not been presented with any proper request to interpret the MDA in
this manner, we cannot assign error to the trial court’s failure to do so. Wife’s arguments
that the trial court failed to interpret her payments under the MDA as obligations related
to the division of marital property, under both Tennessee and federal law, are therefore
waived.
As a final attempt to save this argument, Wife asks this Court to exercise our
discretion to consider Wife’s arguments notwithstanding her waiver. Under Rule 13(b) of
the Tennessee Rules of Appellate Procedure, this Court may exercise its discretion to
consider issues not properly raised by the parties in order to prevent needless litigation,
prevent injury to the interests of the public, and to prevent prejudice to the judicial
process. See also Tenn. R. App. P. 2 (allowing the suspension of the rules of appellate
procedure upon a showing of good cause). Here, the issue involves a private obligation
agreed to by two parties, both of whom were represented in the trial court. As such,
neither the interests of justice nor prejudice to the judicial process is implicated. Wife
contends, however, that resolution of her issue now would prevent needless future
litigation.
Use of Rule 13(b) to consider previously waived issues is rare. See Bell v. Todd,
206 S.W.3d 86, 91 (Tenn. Ct. App. 2005); In re C.R.B., No. M2003-00345-COA-R3-JV,
2003 WL 22680911, at *3 (Tenn. Ct. App. Nov. 13, 2003). As such, we have been
directed to exercise our discretion under Rule 13(b) “sparingly.” State v. Bledsoe, 226
S.W.3d 349, 354 (Tenn. 2007) (citing Tenn. R. App. P. 13(b) advisory comm’n cmt).
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Here, while future litigation to modify Wife’s alimony obligation may occur, nothing in
the record indicates that future litigation as to the interpretation of the MDA is certain or
would be appropriate. Under these circumstances, we decline to invoke Rule 13(b) to
allow Wife to raise previously unlitigated arguments in this court simply because future
proceedings on this issue have the possibility to occur. The trial court’s decision to treat
Wife’s obligation in the MDA as alimony is therefore affirmed.3
B.
Wife raises an alternative argument in this case: that the trial court abused its
discretion when it modified Wife’s alimony by not further reducing the alimony award or
eliminating it entirely. To modify an alimony award, there must be a substantial and
material change in circumstances. Tenn. Code Ann. § 36-5-121(a). As we have
explained,
The party seeking modification bears the burden of proving that a
substantial and material change in circumstances has occurred. Freeman v.
Freeman, 147 S.W.3d 234, 239 (Tenn. Ct. App. 2003) (citing Seal v. Seal,
802 S.W.2d 617, 620 (Tenn. Ct. App. 1990)). Once a substantial and
material change in circumstances has been established, the trial court is
under no duty to modify the award; the party seeking modification must
demonstrate that a modification is warranted. Bogan [v. Bogan], 60 S.W.3d
[721,] 730 [(Tenn. 2001)]. In “assessing the appropriate amount of
modification, if any, in the obligor’s support payments, the trial court
should consider the factors contained in” Tennessee Code Annotated § 36-
5-121(i) “to the extent that they may be relevant to the inquiry.” Id. (citing
Seal, 802 S.W.2d at 620; Threadgill v. Threadgill, 740 S.W.2d 419, 422–
23 (Tenn. Ct. App. 1987)).
Wiser v. Wiser, 339 S.W.3d 1, 12 (Tenn. Ct. App. 2010) (footnote omitted). As such,
“modification of a spousal support award is ‘factually driven and calls for a careful
balancing of numerous factors.’” Id. at 727 (quoting Cranford v. Cranford, 772 S.W.2d
48, 50 (Tenn. Ct. App. 1989)). The trial court’s decision on whether to modify spousal
support is therefore not disturbed on appeal in the absence of an abuse of discretion.
Goodman v. Goodman, 8 S.W.3d 289, 293 (Tenn. Ct. App. 1999).
The trial court in this case found a substantial and material change in
circumstances justifying a modification of alimony. Neither party appears to take issue
with that finding. Wife does take issue with the trial court’s finding that she had the
ability to pay $700.00 per month in support. In particular, Wife points to the trial court’s
3
We therefore express no opinion as to the appropriate classification of the subject obligation had
this issue been properly raised in the trial court.
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rather minimal findings concerning her expenses. Husband counters that the alimony
award was proper because the trial court properly considered the most important factor:
his need for alimony. On this point, we must agree with Wife.
As an initial matter, we note that while the need of the disadvantaged spouse is
often the single most important factor in an initial alimony award, this is not the case in
the context of a modification of alimony. Rather, our supreme court has explained:
When addressing an initial award of support, the need of the spouse must
necessarily be the most important factor to consider, because alimony is
primarily intended to provide some minimal level of financial support for a
needy spouse. See Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct.
App. 1984). Nevertheless, when deciding whether to modify a support
award, the need of the receiving spouse cannot be the single-most dominant
factor, as a substantial and material change in circumstances demands
respect for other considerations. While the need of the receiving spouse
remains an important consideration in modification cases, the ability of the
obligor to provide support must be given at least equal consideration.
Bogan, 60 S.W.3d at 730.
Here, the parties apparently submitted their affidavits of income and expenses to
the trial court as late-filed exhibits. Wife’s affidavit shows income of $7,489.03 and
expenses of $7,534.49, leaving a monthly deficit of $45.46. The trial court accepted
Wife’s stated income but reduced her expenses to $6,712.49, a reduction of $822.00 per
month. This calculation left Wife with a surplus of $776.54 from which to pay alimony.
In support of this reduction, the trial court made the following findings:
The Court realizes that the Court has modified each parties’ Financial
Affidavit in order to find their reasonable expenses. The Court further is
aware that the Wife has a minor child that she supports fully without
assistance from the Husband and that those expenses are included in her
budget. The Court further finds that at least some of the credit card expense
claimed by Wife would probably be for items charged that are also in the
Financial Affidavit list of expenses. Therefore, the Court reduced that
expense by 50%.
The trial court made no further finding concerning its reduction of Wife’s reasonable
expenses.
Respectfully, the trial court’s findings as to its reduction of Wife’s reasonable
expenses are deficient. Rule 52.01 of the Tennessee Rules of Civil Procedure requires
that trial courts make findings of fact and conclusions of law to support their rulings
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following bench trials. Tenn. R. Civ. P. 52.01 (“In all actions tried upon the facts without
a jury, the court shall find the facts specially and shall state separately its conclusions or
law and direct the entry of the appropriate judgment.”). Rule 52.01 “is ‘not a mere
technicality.’” Babcock v. Babcock, No. E2014-01670-COA-R3-CV, No. E2014-01672-
COA-R3-CV, 2015 WL 1059003, at *6 (Tenn. Ct. App. Mar. 9, 2015) (quoting In re
K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May
15, 2009)). No bright-line test exists to determine whether factual findings are sufficient,
but the findings of fact must include as many facts as necessary to express how the trial
court reached its ultimate conclusion on each factual issue. Lovlace v. Copley, 418
S.W.3d 1, 35 (Tenn. 2013) (citing 9C Charles A. Wright et al., Federal Practice and
Procedure § 2571, at 328 (3d ed. 2005)) “Without such findings and conclusions, this
court is left to wonder on what basis the court reached its ultimate decision.” In re
M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App.
April 21, 2004).
In this case, the only specific reduction mentioned by the trial court is that Wife’s
credit card expenses “probably” contain some expenses that had previously been counted
as other expenses. As such, the trial court reduced this expense by 50%. According to
Wife’s affidavit of income and expenses, Wife’s credit card expenses total $600.00 per
month. Reducing this expense by 50%, or $300.00, therefore results in only a surplus of
$254.54, well below the $776.54 surplus found by the trial court. A $254.54 monthly
surplus, however, is not sufficient to pay the $700.00 per month in alimony ordered by
the trial court.4 There is no further explanation for the trial court’s calculations to
illuminate how the trial court reached its decision regarding Wife’s ability to pay. The
trial court’s findings as to Husband’s income likewise contain no specificity as to which
expenses the trial accepted as reasonable and which it rejected. Finally, the trial court’s
order does not appear to take into consideration any of the other relevant factors under
section 36-5-121(i). See Wiser v. Wiser, 339 S.W.3d at 12 (quoting Bogan, 60 S.W.3d at
730). Under these circumstances, to review the trial court’s ruling, we would be “forced
to guess at the rational the trial court used in arriving at its decision. This we cannot do.”
Harthun v. Edens, No. W2015-00647-COA-R3-CV, 2016 WL 1056960, at *5 (Tenn. Ct.
App. Mar. 17, 2016). We must therefore conclude that the trial court failed to comply
with Rule 52.01 in deciding whether and to what extent Wife’s alimony obligation should
be modified.
When a trial court fails to make the necessary findings of fact and conclusions of
law, the appropriate remedy is typically to vacate the trial court’s judgment and remand
the cause to the trial court for written findings of fact and conclusions of law. See
Grissom v. Grissom, 586 S.W.3d 387, 396 (Tenn. Ct. App. 2019) (citing Smith v. UHS
of Lakeside, Inc., 439 S.W.3d 303, 312 (Tenn. 2014)) (discussing the various remedies
4
When the $200.00 arrearage payment is factored in, the $700.00 per month alimony obligation
is increased to $900.00 per month.
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that are available in this situation but noting that vacating the trial court’s judgment is
most in line with the Tennessee Supreme Court’s directive that orders are the products of
trial courts’ independent judgment); see also Lake v. Haynes, No. W2010-00294-COA-
R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011) (explaining that the
Court of Appeals may proceed to consider the merits of a dispute when “the trial court’s
decision involves only a clear legal issue or the trial court’s decision is readily
ascertainable”). Because the trial court failed to comply with Rule 52.01, we vacate the
trial court’s order and remand this matter for the trial court to make specific findings of
fact and conclusions of law in compliance with Tennessee Rule of Civil Procedure 52.01.
We note that Wife also takes issue with the totality of the trial court’s findings as
to the parties’ income and expenses, given that the financial affidavits were submitted
following trial, leaving the parties without an opportunity to cross-examine each other
regarding the claimed expenses. From our review of the sparse record on appeal, it does
not appear that either party objected to this practice. See Tenn. R. App. P. 36(b)
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”). On remand, however, the trial court
may reopen the proof as to alimony in its discretion.
IV. CONCLUSION
The judgment of the Henderson County Chancery Court is affirmed in part and
vacated in part. Costs of this appeal are taxed one-half to Appellant Janet Lynnette
McCormick and one-half to Appellee Donny Joe McCormick, for all of which execution
may issue if necessary.
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J. STEVEN STAFFORD, JUDGE
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