Michael Timothy Brown v. Janine Biache Brown

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 10, 2013 Session

MICHAEL TIMOTHY BROWN v. JANINE BIACHE BROWN

Appeal from the Chancery Court for Maury County

No. 11717 Jim T. Hamilton, Chancellor

No. M2012-01796-COA-R3-CV - Filed June 28, 2013

In this divorce case, the trial court divided property which had not been previously divided

by agreement of the parties and awarded Wife alimony in solido. Wife appeals, asserting that

the trial court erred in failing to classify the property as marital or separate prior to division,

and in failing to award her alimony in futuro, rehabilitative alimony, transitional alimony, or

attorney’s fees. Finding no error we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,

P. J., M. S., and F RANK G. C LEMENT, J R., J., joined.

Neil Campbell, Franklin, Tennessee, for the Appellant, Janine Biache Brown.

Joe W. Henry, Jr., Pulaski, Tennessee, for the Appellee, Michael Timothy Brown.

OPINION

I. Facts & Procedural History

Michael Timothy Brown (“Husband”) and Janine Biache Brown (“Wife”) were

married on May 14, 1983. On December 21, 2011, Husband filed a complaint for divorce

on various grounds including irreconcilable differences. Wife answered, denying the

allegations of the complaint; Wife counterclaimed for divorce on various grounds including

irreconcilable differences. Husband answered, admitting that the parties had irreconcilable

differences and denying the remaining allegations of the counter-complaint.

The parties participated in mediation on March 2, 2012. As a result, the parties

entered into a stipulation whereby: Husband would be granted a divorce pursuant to the

provisions of Tenn. Code Ann. § 36-4-129; a hearing would be held on Wife’s application

for alimony and attorney’s fees and the disposition of any undivided marital property; Wife

would receive the marital home and would be responsible for the indebtedness thereon; the

parties would sell their rental property and divide the proceeds equally; Husband would

receive his 401K account; Husband’s pension would be divided equally between the parties;

each party would receive checking accounts as agreed; each party would receive one vehicle;

Wife’s credit card would be for her sole use, but Husband would repay Wife for previous

purchases made thereon; and dividing the management of four accounts maintained for the

children’s education. The stipulation was signed by the parties and the court and entered on

the minutes of the court.

The court entered an order on March 7 awarding an absolute divorce to Husband; on

March 8, the court entered an agreed pendente lite order giving Wife exclusive possession

of the marital residence and ordering Husband to contribute $1,500 each month to the parties’

joint checking account.

A trial was held on June 28 on Wife’s application for alimony and attorney’s fees and

regarding the division of the marital property not divided in the stipulation. In the course of

the trial, Husband presented a proposal for the distribution of the remaining marital property.

Husband’s proposal divided the property between Husband and Wife and valued each item

of property divided. According to Husband’s proposal, Wife would receive marital property

valued at $25,180 and Husband would received marital property valued at $13,755. The

proposal also separately listed items for both Husband and Wife that were categorized as

“family items given to [Husband/Wife] or brought in from [his/her] family” and also

separately designated items as belonging to the children; these separately listed items were

not given a value in Husband’s proposal.

The court entered an order on July 18: adopting the stipulation and making it an order

of the court; awarding Husband’s equity in the parties’ rental house to Wife in lieu of

alimony; adopting the proposed division of the remaining property as testified to by Husband

at the June 28 hearing; and ordering that each party be responsible for his or her own

attorney’s fees.

On its own initiative, the court entered an Amended Order on July 20. With respect

to the marital property, the order provided:

The Court accepts the classification and disposition of the marital property as

set out in the “Stipulation” filed on March 8, 2012 which includes the values

of the property, real and personal, as well as the liabilities. The Court adopts

Exhibit 9 which is a color coded recitation of the mediation settlement and the

property and numbers that make up the “Stipulation” showing a disposition of

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the marital estate in the following percentages: the total net value of the

marital assets awarded to the Wife was $287,979.65(52.64%) and to Husband

$259,127.09 (47.36%).

With respect to Wife’s application for alimony, the court made specific findings, stating:

The Court recognizes that the parties have a 28 year long marriage; the Wife

was 51 years old at the time of the hearing; that the Wife has a college degree

in business with a major in accounting and the Husband does not; that neither

has a physical or mental condition that bears on the spousal support decision;

there are no minor children or elderly parents that make employment outside

the home undesirable or difficult; that the parties received comparable shares

of the marital property with the Wife receiving slightly more; that both parties

are gainfully employed although the Wife has the capacity to earn more than

$8.40 an hour; that both parties made contributions to the home, in and out,

during the course of the marriage and with these facts established the Court

does not feel an award of alimony in futuro, transitional alimony, or

rehabilitative alimony is warranted under the proof.

The court awarded Husband’s one-half interest in the rental property valued at $22,500 to

wife as alimony in solido. The court stated that it considered all of the factors contained in

Tenn. Code Ann. § 36-5-121(i), as well as “the demeanor of the parties and the witnesses”

in making its findings.

Wife appeals, articulating the following issues:

1. Whether the court abused its discretion when it denied Wife’s request

for alimony, including in futuro, rehabilitative or transitional alimony,

where it failed to consider Wife’s need and Husband’s ability to pay,

fault and other relevant factors.

2. Whether the trial court abused its discretion in adopting Husband’s

proposed distribution of personal property without first classifying the

property and for making a finding that was not supported by the proof

at trial.

3. Whether the trial court abused its discretion in failing to award Wife’s

attorney’s fees.

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II. Analysis

A. Division of Personal Property

As an initial matter, we do not agree that the court failed to classify the property.

Husband’s proposal, about which he testified and which was attached to the July 18 order,

was a list of personal property which was separated into “Janine’s list” and “Tim’s list”; at

the end of each list was a separate list of items for both Husband and Wife that were

categorized as “family items given to [Husband/Wife] or brought in from [his/her] family.” 1

Monetary values were given for items on each list except the “family items.” It is readily

apparent from the context of the exhibit that the items for which a value were given was

marital property, while those for which no value was given were separate property. When

the court adopted the proposed division and made it the order of the court, the classification

in the proposal became the court’s. Wife did not offer any proof countering Husband’s

classification of the property listed or argue at trial that any property listed was separate

rather than marital.2 Wife bore the burden of proving that property acquired during the

marriage was separate. Goulet v. Heede, No. E2000-02535-COA-R3-CV, 2002 WL 126279,

at *5 (Tenn. Ct. App. Jan. 31, 2002). Having produced no evidence at trial to that effect,

Wife did not meet her burden. Furthermore, on appeal Wife has not identified any property

1

Each list contained a separate section of “family items” as follows:

([Wife]) Family items given to her or brought in from her family:

[Wife’s] moms china

Curio Cabinet

Living room tables

Living room lamps

***

([Husband]) Family items given to me or brought in from my family:

Piano

Kitchen Tables and chairs

Cart in eating room

Kitchen island table

Aunt Jane’s silverware

Trailer

Tiller

8mm projector and tapes

2

Wife presented a proposal regarding the distribution of the personal property during her testimony;

this proposal consisted of a list of personal property that Wife requested be given to Husband by the court

and a list of personal property that was already in Husband’s possession. Wife’s list did not provide values

for the property, enumerate the property that she wished to retain, or classify any property as separate or

marital.

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that was improperly classified and distributed as marital. Consequently, her contentions in

this respect are without merit.

B. Alimony

Tennessee Code Annotated § 36-5-121(i) directs the courts to consider all relevant

factors “[i]n determining whether the granting of an order for payment of support and

maintenance to a party is appropriate, and in determining the nature, amount, length of term,

and manner of payment.” The statute lists nonexclusive factors to be considered including

the relative earning capacity, obligations, needs, and financial resources of each party; the

relative education and training of each party; the ability and opportunity and necessity of each

party to secure such education and training in order to improve such party’s earning capacity

to a reasonable level; and the assets of each party, whether they be separate assets or marital

property awarded in the divorce. Tenn. Code Ann. § 36-5-121(i). It is well settled that the

two most important factors to be considered in any spousal support determination are the

disadvantaged spouse’s need and the obligor spouse’s ability to pay. Bratton v. Bratton, 136

S.W.3d 595, 604 (Tenn. 2004); Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002).

Appellate courts are disinclined to second-guess a trial court’s decision regarding

spousal support unless the decision is not supported by the evidence or is contrary to public

policy. Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994). In Gonsewski v.

Gonsewski, our Supreme Court stated that the role of appellate courts in reviewing an award

of alimony is “to determine whether the trial court applied the correct legal standard and

reached a decision that is not clearly unreasonable.” Gonsewski v. Gonsewski, 350 S.W.3d

99, 105 (Tenn. 2011) (citing Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006)).

“Consequently, when reviewing a discretionary decision by the trial court, such as an alimony

determination, the appellate court should presume that the decision is correct and should

review the evidence in the light most favorable to the decision.” Gonsewski, 350 S.W.3d at

105–06.

Wife contends that the trial court failed to consider all of the relevant factors, and thus

erred in its decision to award of alimony in solido rather than alimony in futuro, rehabilitative

alimony, or transitional alimony. In particular, she argues that the court failed to consider

both the “real need of the spouse seeking support as the single most important factor” and

the fault of Husband in causing the divorce.

Wife cites to her income and expense statement, which showed her expenses as

exceeding her income, to support her contention that the court failed to consider her need as

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the most important factor in determining its award of alimony.3 The trial court also heard

testimony regarding Wife’s education and work history,4 the methods Wife used to produce

the amounts identified on the income and expense statement,5 and Wife’s ability to decrease

her expenses through refinancing her home.6 Husband and Wife both testified, likewise,

regarding the factors leading to the dissolution of the marriage.

The court heard testimony upon all of the relevant factors, including Wife’s need and

Husband’s fault, and was able to weigh the evidence accordingly. It is true that the trial court

is to consider fault as well as need of the economically disadvantaged spouse in its alimony

determination, however, those factors are not exclusive; the majority of the factors relate to

the relative financial situations of the parties and the ability of the parties to improve those

situations. The trial court considered each factor at Tenn. Code Ann. § 36-5-121(i) and made

specific findings as to those leading to the award of alimony in solido. In addition, the court

stated that it considered “the demeanor and credibility of the parties and witnesses” in

determining that neither long term, rehabilitative or transitional alimony was appropriate.

Given the deference we accord the trial court’s decision and the court’s findings of

fact, as well as the weight we give the court’s to the court’s assessment of the credibility of

3

Wife’s monthly income and expense sheet listed her income as $1,138 and her expenses as $3,797,

leaving her with a shortage of $2,659.

4

Wife testified that she graduated with a degree in business administration from Middle Tennessee

State University in 1992; that in 1998 she worked for Hauler’s Insurance for six months making $8 per hour;

that in 2000, she worked for York, Dilligham & Company, a CPA firm, for six months making $24,000 per

year; that, immediately upon leaving that position, she worked at Atlantic Pools & Spas for four years making

$15 per hour; that in 2006, she worked for United Medical for six months making $24,000 per year; and that

in 2007, she worked for Thiesing Chiropractic Center for four years making between $11 and $16 per hour.

Wife testified that in October 2011, she began working for Tennessee Farm Bureau making between $8.25

and $8.40 per hour in a data entry position that does not require a college degree. Wife testified that she had

sent out several resumes, but upon cross-examination, could not name those employers to which she had

submitted resumes.

5

Wife testified that her income and expense statement included expenses for the parties’ adult

children who do not live in the home, including two of the children’s cell phone bills and groceries for the

children.

6

The record showed that the marital residence awarded to Wife was valued at $238,000 with a

remaining indebtedness of $45,421. The parties stipulated that Wife would refinance the remaining

indebtedness in her own name. Wife conceded on cross-examination that refinancing the remaining

indebtedness would decrease her monthly payment on the home, and that if she were unable to refinance the

home, she would be able to sell it and retain all the proceeds.

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witnesses testimony,7 the decision to award alimony in solido was not clearly unreasonable

and the court did not abuse its discretion in the award.

C. Attorneys’ Fees

Wife contends that the trial court abused its discretion in failing to award Wife

attorney’s fees because the court “failed to consider all the factors enumerated in Tenn. Code

Ann. § 36-5-121(i).” Wife specifically contends that she should have been awarded her

attorney’s fees because she has a monthly deficiency in income, is burdened with the majority

of the marital debt, and will have to borrow against or deplete any assets which she gained

through the divorce in order to pay her outstanding fees.

“An award of attorney’s fees in divorce cases is treated as a form of spousal support,

and the award is characterized as alimony in solido.” Wilder v. Wilder, 66 S.W.3d 892, 894

(Tenn. Ct. App. 2001). The trial court has wide discretion to award attorney’s fees. Id.

Upon review, this court will not interfere with an award, except upon a showing of an abuse

of discretion where the evidence preponderates against the award. Id.

Wife testified at trial that her attorney’s fees totaled $15,787.50, of which $13,287.50

remained unpaid. With respect to the distribution of marital property, the record shows that

Wife received property with a net value of $287,979.65, constituting 52.64% of the marital

estate. In addition, Wife was awarded Husband’s one-half interest in the parties’ rental

property as alimony in solido, which was valued by the court at $22,500, and monthly

pendente lite support of $1,500 between March and July, and the court found that Wife’s

earning capacity exceeded her current hourly wage. Given these facts and our holding with

respect to alimony, we find no abuse of discretion in the court’s decision not to award Wife

her attorney’s fees.

III. Conclusion

For the reasons stated above, we affirm the judgment of the Chancery Court.

___________________________________

RICHARD H. DINKINS, JUDGE

7

See Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007).

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