Opinion

Barry Bernstein v. Debra Bernstein

Court
Court of Appeals of Tennessee
Filed
May 14, 2002
Status
Published
On the bench
Judge William C. Koch, Jr.
Cited by
0 cases
Authority
More cited than 29.9%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 14, 2002

BARRY DUANE BERNSTEIN v. DEBRA DARLENE BILL BERNSTEIN

Appeal from the Circuit Court for Davidson County

No. 00D-1073 Muriel Robinson, Judge

No. M2001-01631-COA-R3-CV - Filed October 16, 2002

This appeal involves the dissolution of a nineteen-year marriage. After the husband filed a complaint

in the Circuit Court for Davidson County seeking a divorce on the grounds of irreconcilable

differences and inappropriate marital conduct, the wife counterclaimed for divorce on the same

grounds. Following a bench trial, the trial court declared the parties divorced, divided their meager

marital estate, and ordered the husband to pay the wife $350 per month as long-term spousal support.

The husband asserts on this appeal that he is unable to pay the amount of long-term spousal support

ordered by the trial court. We disagree and have determined that the record supports the trial court’s

decision regarding spousal support.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and

PATRICIA J. COTTRELL, JJ., joined.

Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Barry Duane Bernstein.

D. Scott Parsley, Nashville, Tennessee, for the appellee, Debra Darlene Bill Bernstein.

OPINION

I.

Barry Bernstein and Debra Bernstein were married in Franklin, Kentucy in February 1982.

Mr. Bernstein was thirty-six years old, and Ms. Bernstein was twenty-six. Both of them had been

married before, and Ms. Bernstein had two children by her first marriage who lived primarily with

her mother. Mr. Bernstein was employed refinishing motor vehicles. Ms. Bernstein had a ninth

grade education and apparently did not work during the marriage.

In 1993 Mr. Bernstein opened Kustom Kolors of Nashville, Inc., a paint and body shop

located in an industrial area of Nashville called Black Bottom. He was the company’s principal

employee, although he had another part-time worker who was paid on commission. Ms. Bernstein

claims that she also worked in the business despite a serious back injury sustained in 1991. The

Bernsteins, along with nine dogs, lived a Spartan life in a small efficiency apartment attached to the

body shop.

Animosity, violence, and infidelity eventually eroded the Bernsteins’ relationship. They

separated in March 2000 when Mr. Bernstein told Ms. Bernstein to “take what she wanted and

leave.” Ms. Bernstein left, taking with her most of the parties’ personal possessions and the restored

1985 Corvette she had been driving. In April 2000, Mr. Bernstein filed a complaint in the Circuit

Court for Davidson County seeking a divorce on the grounds of irreconcilable differences and

inappropriate marital conduct. Two months later, Ms. Bernstein responded by admitting

irreconcilable differences and counterclaiming for divorce on the same grounds alleged by Mr.

Bernstein.

During the bench trial on May 29, 2001, the trial court characterized the testimony of both

Mr. Bernstein and Ms. Bernstein as “bizarre” and expressly determined that their accounts of the

marital relationship, their respective sexual exploits, and the details of Mr. Bernstein’s business were

not credible.1 At the conclusion of the hearing, the trial court declared the parties divorced pursuant

to Tenn. Code Ann. § 36-4-129(b) (2001). The court awarded Mr. Bernstein the business, his hand

tools, and a frame machine but directed him to pay Ms. Bernstein one-half of the net value of the

tools ($6,500) as part of the division of property.2 The trial court also awarded Ms. Bernstein the

1985 Corvette as well as the personal property she had taken from the living quarters when the

parties separated. Finally, the trial court directed Mr. Bernstein to pay Ms. Bernstein $350 per month

in long-term spousal support until her death or remarriage.

II.

THE RESPECTIVE FAULT OF THE PARTIES

Without citation to authority, Mr. Bernstein appears to take issue with the trial court’s

decision to declare the parties divorced rather than to grant him a divorce on fault grounds. Tenn.

Code Ann. § 36-4-129(b) (2001) now permits trial courts to declare parties divorced without

assigning fault to either party if “either or both parties are entitled to a divorce.” Fulbright v.

Fulbright, 64 S.W.3d 359, 364 (Tenn. Ct. App. 2001). In this case, both parties asserted that they

were entitled to an irreconcilable differences divorce. Based on this assertion, the trial court did not

err by declaring them to be divorced without assigning fault.

1

The trial court’s overall reaction to the parties’ testimony is reflected in the following exchange between the

court and Mr. B ernstein during his testimony regarding the op eration of K ustom K olors:

THE COURT: Your testimony almost insults everybo dy’s intelligence in this co urtroo m. You

know , you’re m aking yo urself loo k like a co mplete idiot.

MR. BERNSTEIN: I am an idiot.

THE COURT: You are not an idiot. You’re smart. You are smart as a fox.

MR. BERNSTEIN: I’m an idiot for staying married to her all those years after catching her all the times.

THE COURT: W e are no t questio ning that. The problem is that you give statements that are

contrary to yo ur last testimony. Y ou give statem ents that d on’t ma ke sense. . ..

2

The trial court directed Mr. Bernstein to pay Ms. Bernstein $150 per mo nth for forty-three months to retire

this obligation. M r. Bernstein d oes not contest the d ivision o f the marital estate o n this appeal.

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III.

THE SPOUSAL SUPPORT AWARD

Mr. Bernstein’s chief complaint on this appeal is that the trial court erred by ordering him

to pay Ms. Bernstein $350 per month in long-term spousal support. He asserts that he is currently

earning only $450 per month and, therefore, is unable to pay this much support. This argument

overlooks a salient legal principle – a person’s obligation to pay spousal support rests on his or her

capacity to earn income, not just on his or her actual income.

A.

There are no hard and fast rules for spousal support decisions. Anderton v. Anderton, 988

S.W.2d 675, 682 (Tenn. Ct. App. 1998); Crain v. Crain, 925 S.W.2d 232, 233 (Tenn. Ct. App.

1996); Stone v. Stone, 56 Tenn. App. 607, 615-16, 409 S.W.2d 388, 392-93 (1966). Trial courts

have broad discretion to determine whether spousal support is needed and, if so, its nature, amount,

and duration. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Goodman v. Goodman, 8

S.W.3d 289, 293 (Tenn. Ct. App. 1999). Appellate courts are generally disinclined to second-guess

a trial court's spousal support decision unless it is not supported by the evidence or is contrary to the

public policies reflected in the applicable statutes. Brown v. Brown, 913 S.W.2d 163, 169 (Tenn.

Ct. App. 1994); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986). Our role is not to

fine tune a trial court’s spousal support award, Hartman v. Hartman, No. E2000-1927-COA-R3-CV,

2001 WL 823188, at *7 (Tenn. Ct. App. July 20, 2001) (No Tenn. R. App. P. 11 application filed),

but rather to determine whether the trial court applied the correct legal standard and reached a

decision that is not clearly unreasonable. Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001).

Tenn. Code Ann. § 36-5-101(d)(1) (2001) reflects a preference for temporary, rehabilitative

spousal support, as opposed to long-term support. Crabtree v. Crabtree, 16 S.W.3d 356, 358 (Tenn.

2000); Goodman v. Goodman, 8 S.W.3d at 293. Rehabilitative support is intended to enable an

economically disadvantaged spouse to acquire additional education or training or to provide that

spouse with temporary income during the post-divorce economic adjustment. Robertson v.

Robertson, 76 S.W.3d 337, 340-41 (Tenn. 2002); Smith v. Smith, 912 S.W.2d 155, 160 (Tenn. Ct.

App. 1995). On the other hand, the purpose of long-term spousal support is to provide support to

a disadvantaged spouse who is unable to achieve some degree of self-sufficiency. Loria v. Loria,

952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). The statutory preference for rehabilitative support does

not entirely displace other forms of spousal support when the facts warrant long-term or more open-

ended support. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816 S.W.2d 735,

739 (Tenn. 1991).

Initial decisions regarding the entitlement to spousal support, as well as the amount and

duration of spousal support, hinge on the unique facts of each case and require a careful balancing

of all relevant factors, including the factors identified in Tenn. Code Ann. § 36-5-101(d)(1) (2001).

Robertson v. Robertson, 76 S.W.3d at 338; Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App.

1999). Among these factors, the two considered most important are the disadvantaged spouse's need

and the obligor spouse's ability to pay. Robertson v. Robertson, 76 S.W.3d at 342; Bogan v. Bogan,

60 S.W.3d at 730; Manis v. Manis, 49 S.W.3d 295, 304 (Tenn. Ct. App. 2001). Of these two factors,

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the disadvantaged spouse's need is the threshold consideration. Aaron v. Aaron, 909 S.W.2d at 410;

Watters v. Watters, 22 S.W.3d at 821.

B.

Ms. Bernstein has unquestionably demonstrated that she is economically disadvantaged

compared to Mr. Bernstein and that she needs long-term spousal support. She is a 47-year-old

woman with a ninth grade education. While she obtained training as a certified nurse technician

after the parties’ separation, she testified that she was able to work only part-time because of the

back injury she sustained in 1991 and lung disease. Her physical limitations prevent her from

earning more than $700 per month.

Mr. Bernstein’s ability to pay long-term spousal support is not measured by his actual income

at the time of trial but rather by his earning capacity. Tenn. Code Ann. § 36-5-101(d)(1)(A); Storey

v. Storey, 835 S.W.2d 593, 596-97 (Tenn. Ct. App. 1992); see also Bogan v. Bogan, 60 S.W.3d at

735 (Holder, J., dissenting). Despite his boast that he is an “expert” in automobile refinishing, he

testified that he was currently earning only $450 per month at his paint and body shop. The trial

court, however, was not required to base its long-term spousal support award on this income figure

for two reasons. First, Mr. Bernstein’s testimony regarding his income was so evasive and

unbelievable that the trial court had good cause to disregard it. Second, Mr. Bernstein stated that he

was planning to close his business and go to work for somebody else and that he could earn $500

to $600 per week if he did so.

In light of Mr. Bernstein’s self-confessed ability to earn more than $31,000 per year

refinishing automobiles, we have no basis for concluding that the trial court’s decision to calculate

his spousal support obligation on an annual income of $31,000 rather than $5,400 is clearly

unreasonable. Likewise, after considering all the other relevant factors in Tenn. Code Ann. § 36-5-

101(d)(1), we have determined that the trial court did not err by ordering Mr. Bernstein to pay Ms.

Bernstein $350 per month in long-term spousal support.

IV.

We affirm the judgment and remand the case to the trial court for whatever further

proceedings may be required. We tax the costs of this appeal to Barry Duane Bernstein and his

surety for which execution, if necessary, may issue.

_____________________________

WILLIAM C. KOCH, JR., JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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