SHELLEY (DOUGLAS) STEVENSON, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9506-CV-00230
v. )
) Davidson Circuit
MICHAEL KINGSTON STEVENSON, ) No. 93D-3651
)
Defendant/Appellant. )
FILED
December 18,
COURT OF APPEALS OF TENNESSEE 2001
MIDDLE SECTION AT NASHVILLE Cecil Crowson, Jr.
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE
MIKE W. BINKLEY
150 Second Avenue North, Suite 300
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLEE
JACK NORMAN, JR.
213 Third Avenue North
Nashville, Tennessee 37201
NADER BAYDOUN
JOHN I. HARRIS, III
Suite 2420, Nashville City Center
511 Union Street
Nashville, Tennessee 37219-1716
ATTORNEYS FOR DEFENDANT/APPELLANT
AFFIRMED as MODIFIED
and REMANDED
SAMUEL L. LEWIS, JUDGE
MEMORANDUM OPINION1
This is an appeal by defendant, Michael Kingston Stevenson
(Husband), from the trial court's award of alimony in solido,
alimony in futuro, the amount of child support award, and the award
of additional alimony in solido of $9,700.00 for plaintiff, Shelly
Sue Douglas Stevenson's (Wife), attorney's fee.
The parties were married in 1982 and have two sons of the
marriage, one thirteen and the other eleven. The parties separated
in September 1993.
At the time the parties married, and until 1984, they lived
in a studio apartment located in some mini warehouses which were
owned by Husband's parents and brother. The parties had lived at
the studio apartment prior to their marriage.
From 1984 to 1991 they lived in Key West, Florida at some
property owned by the Husband's parents and brother while the
Husband worked for the parents and the brother to reconstruct and
remodel the property. In 1991 the parties moved back to Nashville
and moved into the Husband's parents home which is divided into
separate apartments.
The Husband has a high school education and approximately
two years of college. He quit college in 1977 and began doing
general repair maintenance and construction work for his parents
and brother. He has continued to work for his parents and brother
1
Court of Appeals Rule 10(b):
The Court, with the concurrence of all judges participating in the
case, may affirm, reverse or modify the actions of the trial court
by memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion it
shall be designated "MEMORANDUM OPINION," shall not be published,
and shall not be cited or relied on for any reason in a subsequent
unrelated case.
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doing this type of work since 1977. He initially earned between
three and six dollars per hour working for his parents and in
addition, his parents provided him and his Wife a place to live.
In 1992 the Husband started receiving a salary of $200.00 per week
from his father in addition to having living accommodations and
utilities furnished as well as access to a vehicle. The Wife also
worked for the Husband's family "the whole time" the parties were
married. Their joint tax returns for 1986 through 1991 show a
combined net annual income which ranges from $5,293.00 to
$10,975.00.
The parties had lived together before they married, and the
Wife therefore knew where they would live and what type of career
her Husband had in mind after the marriage. She knew that he owned
no property. The property is owned by Husband's parents and
brother and was acquired by them prior to the time that the parties
married. There is no evidence the Husband ever invested any money
in any of the properties owned by the parents or his brother.
The Husband's parents are now in their seventies and he does
not believe they would be able to maintain their investment
properties if he took a job independent of them. He has not sought
other employment because he feels an obligation to take care of his
parents and because he believes that he would be unable to net any
more working for a third party because his living expenses would be
greater and would not be taken care of as they are at the present
time.
In early 1992, the Wife applied for Medicaid after she had
learned that she had a brain tumor and because of her concern of
the financial drain that treatment might put on the "family." She
was advised at the time she applied for Medicaid that she also
qualified for food stamps and AFDC.
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The Wife has two years of college and will complete Baptist
Hospital's LPN program in May 1995. Her medical problems do not
prevent her from being employed. She has had various jobs since
she and the Husband separated in which she earned $6.00 to $8.75
per hour.
The Husband insists that his income should be calculated
exclusively by his reported salary of $800.00 per month plus his
food and lodging, and that his earning capacity should be
determined exclusively by his opinion that he would be able to earn
only $400.00 per week in the open labor market. Husband also
asserts that because the Wife is obtaining her license as a
practical nurse, that their respective incomes and earning
capacities are approximately equal. The Husband therefore argues
that the trial court abused its discretion in awarding the Wife any
support whatsoever.
The Husband contends that the trial court erred in its
factual finding that he had the ability to pay the $700.00 per
month support awarded to the Wife. He insists there is
insufficient evidence to establish an earning capacity in excess of
$20,800.00 per year, and that the expert's testimony relative to
his earning capacity should have been rejected. He also argues
that any consideration of the financial resources of his family or
the "gifts" he received from the family should be rejected.
The trial court had before it the information contained in
the Husband's tax returns and was unpersuaded by this argument or
by the Husband's opinion of his earning capacity and the sources of
his income. The record shows that an assessment of the Husband's
earning capacity was difficult because the Husband had worked for
the family's partnership for a nominal salary for his entire
working life and he had no history of income in the open job
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market.
However, the evidence did contain a comprehensive list of
skills possessed by the Husband, his prior work experience,
description and photos of the projects he had completed, the worth
placed on his skill and experience by his employer, i.e. his
family, and expert testimony relative to what the Husband would be
able to earn if he quit the family partnership and obtained a job
in the open market.
The trial judge was persuaded by all of the evidence rather
than believe the Husband's assessment of himself. The court
established the Husband's support obligations according to the
factual finding that the Husband was underemployed and had an
earning capacity which would make it sufficient for him to pay the
support awarded. This factual conclusion depends primarily upon
the credibility assessment made by the trial judge and is entitled
to great weight on appeal. Town of Alamo v. Forcum-James Co., 327
S.W.2d 47, 49 (Tenn. 1959). In fact, to overturn this finding
requires concrete and convincing evidence other than oral testimony
of witnesses. Tenn. Valley Kaolin Corp. v. Perry, 526 S.W.2d 488,
490 (Tenn. App. 1974). There is no evidence cited by the Husband,
either oral or documentary which preponderates against the trial
court's factual findings. There is evidence in the record from the
Wife that the Husband earned approximately $3,000.00 in cash per
month which was not reported as taxable income and in addition,
valuable fringe benefits of his participation by working for his
family. These benefits included free lodging, free transportation,
payment of medical costs, cash as needed, and subsidization of
living expenses and access to the family resources.
The Wife presented an expert's testimony that showed that
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Husband's earning capacity in the open labor market was between
$49,000.00 and $96,000.00 per year. It shows that the cash
withdrawals made by the Husband for family expenses, his declared
salary, the value of housing and transportation, along with medical
care, access to funds when he needed them and general financial
security exceeds, or is equal to, the median earning capacity
presented by the Wife's expert witness.
Following our review of this record we are of the opinion
that the evidence does not preponderate against the findings of the
trial court that the Husband has the ability and the Wife has the
need for $700.00 per month alimony.
Defendant's second issue is: "The trial court erred in
awarding the Wife $12,000.00 as alimony in solido."
It is clear from the trial court's statement that this
amount was based solely on the fact that the parties were married
for twelve years and what the Husband might have been able to save
if he had worked outside the family.
We presume from the trial court's factual finding that the
court intended to retroactively impose a duty on the Husband to
maximize the marital estate during the parties' marriage. The
trial court appears to have placed the entire burden for managing
the marital estate on the Husband but without any concurring
obligation on the Wife. The trial court stated that the Husband
had "elected to enhance the estate of his parents and brother to
the exclusion of his own marital estate with his wife, and as a
result she has no assets." The trial court had already found that
the parties did not have any material marital estate. "For twelve
years these parties had - twelve years of marriage they have
virtually zero in the marital estate, but he does have earning
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capacity." The trial court in awarding alimony in solido stated
"the court further finds that Mr. Stevenson has the ability to pay
a lump sum amount of alimony. As I said he's worked for twelve
years, and has virtually no marital estate because he's enhanced
other people's estate to the detriment of his family. I will award
her $12,000.00 as alimony in solido."
We think it is clear from the record that these parties had
no marital estate. The trial court awarded what marital assets
there were to the Wife. The Wife asked for and received
substantially all of the tangible assets. She retained various
items of jewelry which she had received from her Husband during the
marriage and which had an original cost in excess of $5,470.00.
She retained her investment account that her mother had for her
with a balance of "$10,000.00 to $15,000.00." She also retained a
car which was purchased for $4,400.00 and was given to her by the
Husband's family. She disposed of this automobile after the
parties separated.
There is nothing in this record to show that the Husband had
any bank accounts, real property, or current assets or any estate
from which to pay alimony in solido. Alimony in solido should be
awarded generally only out of a spouse's estate. Houghland v.
Houghland, 844 S.W.2d 619, 622 (Tenn. App. 1992). In Houghland
this court rejected the Husband's argument that the trial court had
improperly awarded alimony in solido out of an expectation of
future earnings, noting that there was an exception to the general
rule which applied under the facts of Houghland.
In view of the above circumstances, we conclude
that the trial judge did not abuse her discretion
in awarding Husband to pay the amount of the note
received as alimony in solido. Our review of the
record indicates that Husband disposed of marital
assets without informing Wife and later concealed
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these actions from her. We believe that these
actions justify a departure from the general rule
announced in Aleshire.
Id. at 623.
Here, there was no factual finding nor is there any evidence
in the record to establish the Wife's need for an award of alimony
in solido or an award of such in the amount established by the
trial court. There is no factual finding of the existence of any
assets or estate that the Husband has from which to make the
alimony in solido payments. The only finding by the trial court
with respect to Husband's ability to make any payments other than
reliance upon his parents and brother was his earning capacity,
that is, his expectations of future earnings.
Under these circumstances we are of the opinion that the
trial court erred in awarding the Wife alimony in solido.
Defendant's next issue is: "The trial court erred in
awarding the Wife $800.00 per month as child support."
In this court the Husband contends that the trial court
erred in setting the child support obligation without making a
finding in regard to his net income in applying the child support
guidelines. He asked that this issue be remanded to the trial
court for a determination and written findings if the court
deviates from the guidelines. At trial no such demand was made.
Defendant Husband stated in closing arguments that:
This court has made a previous finding that this
man was under-employed and you set the child
support at $800.00 per month, and that equates out
to an income of $40,200.00 for Mr. Stevenson. Now,
if the court please, I think that's stretching his
ability, but we'll live with that and we have lived
with it. I say 'we.' I mean Mr. Stevenson. He
has made the payments of child support. And at the
outset of this case I told the court that he would
continue to make those payments of child support
even if he had to borrow it from his family, which
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that's exactly where it's coming from. Now, if you
believe what he says about his income, his earning
capacity ... then you're taxing him in child
support way beyond his means but we will accept
your finding as to his ability to earn income.
Here, it was almost impossible for the trial court to
precisely calculate the Husband's actual income because his family
fully supported him and in exchange he worked for the family on a
consistent basis for small monetary compensation. The court could
only determine that the Husband was provided "any and all funds"
that either he or the Wife or the children needed. There was
nothing in the record from which the trial court could accurately
pinpoint the Husband's earning capacity because he had never worked
in the open job market. In regard to his earning capacity, the
trial court had a range of between $49,000.00 and $97,000.00 from
which to chose based on the Wife's expert's opinion testimony.
The Wife contends that the trial court did as best it was
able in setting child support in this case.
The Wife contends that the child support should be set
according to the mean earning capacity as testified to by her
expert witness, Dr. Anchor. That is, $62,400.00.
Under the guidelines, child support is determined as a
percentage of the obligor parents' net income and presumes that the
obligee parent will be expending an equal percentage of net income
for support of the parties' children. Malone v. Malone, 842 S.W.2d
621, 624 (Tenn. App. 1992).
From our reading of this record, we are of the opinion that
the trial court's findings regarding child support do not reflect
that the court set support in accordance with the guidelines. The
trial court made no findings regarding the Wife's net income and
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made no findings regarding the application of the child support
guidelines to the Husband's net income. There were no findings
made regarding whether the application of the guidelines would be
just or equitable under the circumstances.
We are unable to tell from the record whether the trial
court was applying the guidelines or deviating from them. No
specific findings were made by the court that it would be
appropriate to deviate from the guidelines. The trial court merely
set child support for the two children to remain unabated even
after the eldest child reached the age of majority.
Neither of the parties in their brief discussed the
child support guidelines and the record does not
reflect that at trial they attempted to determine
the net income of either of the parties in order to
determine the correct amount of support. The trial
court in the decree did not find the amount of
support based upon the guidelines nor did it make
written findings that the application of the
guidelines would be unjust or inappropriate as
required in Tennessee Code Annotated section 35-6-
101(e)(1). Therefore, this case must be remanded
to the trial court for determination of the amount
of child support based upon the [sic] child support
guidelines or if they are not appropriate, written
findings by the trial court as required by the
statute.
Malone, 842 S.W.2d at 624-25.
In the instant case, on remand the trial court should make
findings regarding the Husband's net income and the appropriate
amount of child support under the guidelines based upon the
Husband's net income and should the trial court deviate from the
guidelines, the basis for such deviation.
The defendant's next issue is: "The trial court erred in
requiring the Husband to pay any and all of the Wife's medical
expenses which are not otherwise covered by medical insurance until
her death."
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The trial court ordered the Husband to pay the Wife's future
medical expenses which are not covered by either TennCare or other
insurance which might be obtained by the Wife. It is Husband's
contention that the trial court erred because its authority is
limited to requiring a spouse to pay premiums of insurance for the
disadvantaged spouse as set forth in Tennessee Code Annotated
section 36-5-101(f).
The trial court found that the Husband had "shirked" his
responsibility to provide medical insurance for his family during
the marriage and "now it's become a big problem because the Wife is
probably uninsurable other than TennCare." The Wife argues and we
agree that the Husband is seeking to benefit from his failure to
adequately provide health insurance for the Wife during marriage.
Under the Husband's argument the trial court would have been
authorized to order him to maintain insurance for the Wife if he
had had insurance on her but because the Wife is uninsurable she
must be left to fend for herself. We are of the opinion that the
law is clear that the trial court was authorized to order the
payment of uncovered medical expenses of the Wife by the Husband.
See Green v. Green, 8 T.A.M. 10-19 (Tenn. App. 1983).
In Clift v. Clift, 4 T.A.M. 33-27 (Tenn. App. 1979) the
trial court ordered the husband to pay the medical expenses
incurred by the wife for her treatment of alcoholism and to pay for
the wife's future medical expenses, particularly her expenses
related to recovery from alcoholism. On appeal, the husband argued
that such an order was contrary to public policy and was so
indefinite as to be surplusage and unenforceable. This court
affirmed the trial judge's decision stating "the statute gives a
trial court broad power in both setting and modifying the amount
and type of award necessary for the particular facts involved.
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This statutory power may be used at the trial court's discretion,
and the use of that power will not be interfered with by this court
unless there is a showing of abuse. Id. at 3.
Defendant's fifth issue is: "The trial court erred in
awarding the Wife additional alimony in solido of $9,700.00 to
offset her attorney's fees."
The Husband was ordered to pay $9,700.00 as reasonable
attorney's fees which Wife incurred in the trial of this case.
It is the Husband's insistence that the Wife should be
required to pay her attorney's fees by liquidating her separate
property, which was comprised of some jewelry given to her by the
Husband during their marriage, and her investment account between
$10,000.00 and $15,000.00 which was given to her by her mother.
While it is not appropriate to award attorney's fees when the
spouse is able to pay such fees, either from her separate assets or
from funds awarded to the spouse by way of property division or
alimony, if the financial provisions made for the disadvantaged
spouse by way of alimony do not include the means out of which
counsel fees can be reasonably be paid, the trial court is
authorized to grant to the disadvantaged spouse additional alimony
for the purpose of enabling her to pay her attorney. Palmer v.
Palmer, 562 S.W.2d 833, 839 (Tenn. App. 1977).
The award of attorney's fees lies within the discretion of
the trial court and this court "will decline to disturb the trial
court's decision regarding attorney's fees unless the decision is
not supported by a preponderance of the evidence." Luna v. Luna,
718 S.W.2d 673, 676 (Tenn. App. 1986). This court will not
ordinarily interfere with the allowance of attorney's fees by the
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trial court for services in the trial court unless it is readily
apparent that an injustice has been perpetrated.
Here, the Wife had only meager assets and nothing in
property division because the parties had no marital estate.
Under the facts in this record we are of the opinion that
the evidence does not preponderate against the trial court's
determination that the Wife is entitled to additional alimony of
$9,700.00 to "offset her attorney's fees."
We have considered the plaintiff's request that she be
awarded her attorney's fees incurred in this appeal. On remand,
the trial court shall conduct a hearing regarding whether the
plaintiff is entitled to additional alimony for attorney's fees on
this appeal and if so the reasonable amount.
The judgment of the trial court is affirmed as modified, and
the cause is remanded to the trial court for further proceedings in
conformity with this opinion.
Costs on appeal are taxed to the defendant/appellant.
__________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________
HENRY F. TODD, P.J., M.S.
_________________________________
BEN H. CANTRELL, JUDGE
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