FILED
October 28, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
CARLYSS A. CATIGNANI )
)
Plaintiff/Appellant, ) Appeal No.
) 01A01-9806-CV-00269
v. )
) Davidson County Circuit
SHARON ELAINE PHILLIPS )
CATIGNANI ) No. 97D-382
)
Defendant/Appellee. )
)
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CIRCUIT COURT
FOR DAVIDSON COUNTY
THE HONORABLE MURIEL ROBINSON PRESIDING
JOHN J. HOLLINS, JR.
Hollins, Wagster & Yarbrough, P.C.
424 Church Street
2210 SunTrust Center
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFF/APPELLANT
D. SCOTT PARSLEY
Barrett, Johnston & Parsley
217 Second Avenue, North
Page 1
Nashville, Tennessee 37201-1601
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AS MODIFIED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, P.J., M.S.
CAIN, J.
OPINION
This appeal arises from a divorce proceeding ending the second marriage between the parties.
Mr. Catignani (“Husband”) appeals the distribution of property and the type and amount of alimony
ordered by the trial court following a hearing in the Davidson County Circuit Court. For the following
reasons we affirm as modified.
I.
The parties first married in November of 1975. Two children, now adults, were born during the
marriage. In September of 1988 Mrs. Catignani (“Wife”) was granted a divorce in the Probate Court of
Davidson County. Following that divorce Wife appealed the division of marital property to this court.
In October 1989 this court rendered an Opinion modifying the trial court’s order. See
Catignani v. Catignani, No. 89-147-II, 1989 WL 126726 (Tenn. Ct. App. Oct. 25, 1989). The
parties owned three parcels of land in Davidson County, one of which, with 6.1 acres, included the
marital home. With regard to the marital home, this court awarded half to each party and ordered
Husband to pay the monthly mortgage payments, taxes, and insurance on the property. Wife and the
then minor children were given the right to live in the house until the younger child reached eighteen years
of age. When the younger child reached eighteen, either party had the right to petition the court to have
the marital home sold. Following the sale, Husband was to be reimbursed for his post-divorce mortgage
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payments, taxes and insurance payments on the real property. The remaining proceeds were to be
divided evenly between the parties.
This court also considered the alimony awarded to Wife and concluded that the amount of
rehabilitative alimony ordered by the trial court, $150 per month for fourteen months, was insufficient, at
least as to duration. The alimony was increased to $150 per month “until such time as the wife has been
rehabilitated.” Catignani, 1989 WL 126726 at *1. This award was based upon this court’s findings that
Wife was at an economic disadvantage relative to Husband, had not worked outside the home since the
birth of her older child, and had “no particular work skills.”
After their first divorce the parties resumed their relationship. Although Husband claimed he had
maintained a separate residence, the trial court found that they began cohabiting in the marital home
within a year of the first divorce. The parties remarried in June 1996, but eight months later in February
1997 Husband filed for their second divorce. Wife filed an Answer and Counter-Complaint for divorce.
At trial the parties stipulated to the award of a divorce to Wife on the grounds of inappropriate marital
conduct, pursuant to Tenn. Code Ann. § 36-4-129, and a hearing was held on the issues of property
distribution and alimony.
After the hearing herein the trial court ordered that the parties’ real property be sold and the net
proceeds be equally split between them. The court ordered that Husband be reimbursed for one year’s
worth of the mortgage payments he made on the parties’ residence after the first divorce. Wife was
awarded a $16,000 share of husband’s annuity funds as well as $12,000 representing half of the increase
in Husband’s annuity during the second marriage. Husband was ordered to pay alimony of $750 per
month and to make unreimbursed payments on the house until it was sold. After the sale of the house,
Husband was to pay $1,000 per month as alimony in futuro. Husband was also ordered to pay Wife’s
attorney fees. Husband appeals these decisions.
II.
We review the findings of fact by the trial court de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the findings, unless the preponderance of the
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evidence is otherwise. See Tenn. R. App. P. 13(d). Because the trial judge is in a better position to
weigh and evaluate the credibility of the witnesses who testify orally, we give great weight to the trial
judge's findings on issues involving credibility of witnesses. See Gillock v. Board of Prof’l
Responsibility, 656 S.W.2d 365, 367 (Tenn.1983).
III.
Husband’s first issue relates to the distribution of marital property. Trial courts have wide
discretion in the manner in which marital property is divided, and their decisions are accorded great
weight on appeal. See Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App.1994); Wallace v.
Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App.1987). The trial court's decision on the distribution of
marital property is presumed correct unless the evidence preponderates otherwise. See Tenn. R. App.
P. 13(d); Wallace, 733 S.W.2d at 107.
Husband appeals the trial court’s order regarding distribution of the proceeds from the sale of the
marital residence. In essence, he claims that he is entitled to the distribution ordered by this court in its
1989 Opinion and that the trial court was required to ignore events occurring after that order.
In 1989 this court ordered that when parties’ younger child turned eighteen, either party had the
option to have the property sold, and at that time Husband would be entitled to be reimbursed for “all
sums he had paid since the date of divorce as mortgage payments, taxes and insurance on real property,
and all remaining net proceeds would be divided equally between the parties.” Catignani, 1989 WL
126726 at *2.
Husband paid $65,720 in mortgage, tax and insurance payments from October 1988 until May
1995 when the couple’s younger child turned 18. He paid a total of $75,449 from the first divorce until
the second marriage, and he paid a total of $91,613.10 until the date of the hearing in this matter. He
now argues that he is entitled to the entire $91,613.10 or, in the alternative, at least the $75,449 he paid
prior to the second marriage in June 1996. He claims that the prior Opinion of this court entitles him to
be reimbursed for this money.1
The trial court herein ordered that the residence be sold, that out of the proceeds Husband be
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reimbursed one year’s worth of payments on the residence which was determined to be $9,756, and that
the remainder of the proceeds be divided equally between the parties. Regarding the reimbursement to
Husband of only one year’s worth of payments, the trial court stated, “the Court makes this finding
because of the proof demonstrating that the parties resumed living together shortly after the Court of
Appeals decision.” Husband disputes this factual finding. He testified at the trial regarding various dates
when the parties resumed cohabitation, apparently making a distinction between spending nights at the
marital home and “moving back in for good,” but did admit that the parties lived together intermittently
between the marriages. Wife testified that the couple was separated only a few months after the first
divorce, although she admitted that Husband did not spend every night at the marital home. The
evidence in the record does not preponderate against the trial court’s finding that Husband lived in the
marital home for most of the time between the marriages. The effect of this court’s 1989 Opinion
was that the marital residence was still jointly owned by the parties after the divorce. It is undisputed that
the parties’ younger child turned eighteen in May of 1995 and that neither party, at that time or later,
initiated the sale of the residence as authorized by the 1989 Opinion. When the parties remarried, the
residence was still jointly owned, and they jointly refinanced the house during their second marriage.
This court has previously reviewed divisions of property between spouses who had previously
been married to and divorced from each other. See Flanagan v. Flanagan, 656 S.W.2d 1 (Tenn. Ct.
App.1983); Hardin v. Hardin, 689 S.W.2d 152 (Tenn. Ct. App.1983); Reed v. Reed, (no case
number given), 1986 WL 7866 (Tenn. Ct. App. July 16, 1986)(no Tenn. R. App. P. 11 application
filed). These cases have consistently held that second marriages between the same parties are treated as
if the parties had married different people. That premise has been stated as:
[W]e deem it proper to treat the second marriage of the same parties as we would treat
any other marriage. The parties entered the second marriage with full knowledge of who
was the legal owner of the various parcels of land. This court is without authority to
review the distribution of the property of the first decree . . . . We accept that division
and treat each party coming into the second marriage as the owner of the property as
allowed in the first decree.
Hardin, 689 S.W.2d at 154 (quoting Viar v. Viar, (Tenn. Ct. App. Dec. 9, 1981) (no Tenn. R. App.
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P. 11 application filed)); see Flanagan, 656 S.W.2d at 3; Reed, 1986 WL 7866 at *2. Once a court
has divided the marital property, it becomes that party’s separate property, and if the parties remarry and
divorce, what was separate property before the second marriage remains separate property. See
Flanagan, 656 S.W.2d at 3; Hardin, 689 S.W.2d at 154; Reed, 1986 WL 7866 at *2.
Husband relies on this line of cases to argue that he is entitled to be reimbursed for the payments
he made on the couple’s residence pursuant to this court’s 1989 Opinion. He asserts that he should be
reimbursed because if the parties had never been married the first time, Wife would have no legal claim to
the equity in the marital residence. The case at bar, however, is distinguishable from Hardin and Reed in
that the marital home in this case never became the separate property of either party after the first
divorce. It was jointly owned at the time of their remarriage, and they jointly refinanced it. In the
refinancing, they borrowed additional money, thereby reducing the equity in the residence. Husband
never asserted his right to force a sale when the younger child turned eighteen. Instead, he continued
living in the marital residence, and later remarried Wife. There can be no question that the residence was
marital property when the couple divorced the second time.
We note that the court in Flanagan, while holding that the separate property before the
remarriage remains separate, refused to enforce the wife’s claims of debts owed, but never paid, from
the prior divorce between the same parties. See Flanagan, 656 S.W.2d at 2-3. Flanagan involved the
third divorce between the same parties. In that case, the husband appealed from the trial court’s order
that he pay the wife, as alimony in solido, half the proceeds of the sale of the house at the dissolution of
the third marriage.2 The wife claimed that the prior divorce decree, which was not in the record of the
third divorce proceeding, provided that she was to quitclaim her interest in the home in exchange for the
husband purchasing an automobile for her and paying off a lien on her trailer. She admitted to having
executed the quitclaim deed, but testified that the husband had beaten her up and forcibly taken the deed
from her without buying the car or paying off the lien. The wife argued that since the husband had not
complied with the previous order, he was not entitled to claim full ownership of the property on the basis
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of her quitclaim to him. The court held that the husband’s obligations arising from the previous divorce
should have been “attended in the previous divorce by contempt or some other proceeding and not ...
collaterally attacked in this proceeding.”3 Flanagan, 656 S.W.2d at 3.
The Illinois Court of Appeals, in addressing the issue of the effect of a remarriage between
parties to a divorce upon the decree of divorce, stated the same concept very clearly:
We do conclude, however, that the remarriage of the parties does render the prior
divorce decree unenforceable. Thus, to the extent the prior divorce decree has been fully
complied with, it has the full force and effect of any other judgment rendered by a court
of competent jurisdiction. For example, a division of marital property which has been
effected, executed, and completed is not nullified by the remarriage of the parties. Should
the parties remarry, they come into the marriage with respect to this property as if they
had never been married. However, with respect to provisions of the divorce decree
which have not been fully executed, upon remarriage of the parties, no action may be
brought to enforce those provisions.
...
[A]n unexecuted or incomplete property settlement, as here, simply cannot be enforced
once the parties remarry each other.
In re Marriage of Parks, 630 N.E.2d 509, 513 (Ill. App. 1994).
In the case before us, Husband never took the steps available to him to force the sale of the
residence, and the distribution of the funds was never effected. Neither the residence nor the funds
Husband now claims ever became his separate property before the second marriage. To the extent that
Husband argues that he can enforce a right to repayment, granted by the first divorce decree but never
asserted, and that the trial court cannot consider the parties’ actions after the first divorce decree,
including their remarriage, we respectfully disagree. The parties’ actions herein, including specifically the
joint refinancing of the residence with a decrease in the equity, indicate that they treated the residence as
joint or marital property.
Having determined that the real property in question, including the equity therein, was marital
property at the time of the second divorce and, therefore, subject to distribution, our only remaining
question is whether the trial court’s distribution was equitable. The trial court found that Husband paid
mortgage, taxes and insurance for the marital residence for only one year during which he was not living
in the home. In light of the fact that the trial court ordered Husband compensated for that year, we find
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that the otherwise even division of parties’ real property was equitable. We affirm the trial court’s order
regarding the distribution of proceeds from the sale of the marital home.
IV.
Husband next appeals the trial court’s division of his retirement fund. As a result of the first
divorce, Husband was granted all right and title to his vested retirement plan with Southern Colortype,
valued at the time at $35,676, provided:
he remains employed at Southern Colortype until retirement. In the event Mr. Catignani
becomes entitled to the proceeds of that plan because of his death before retirement
eligibility, one half (½) of the proceeds are awarded to his children if they are under
eighteen (18) years of age at the time of death. If Mr. Catignani draws the proceeds
because he leaves the company, then Mrs. Catignani shall be entitled to $8,000.00 and
the children shall be entitled to $8,000.00.
Catignani, 1989 WL 126726 at *2 (quoting the trial court order) (emphasis added).
In September of 1995, about nine months before the second marriage, Husband was laid off
from his position at Southern Colortype. He withdrew the money from his retirement fund and moved it
into an annuity fund without informing Wife that he had done so. The value of the annuity increased from
approximately $91,000 to approximately $115,000 during the second marriage. The trial court awarded
Wife $16,000 as her share of Husband’s original retirement fund under the first divorce decree, and
$12,000 as half of the increase during the marriage.
Husband argues that the trial court abused its discretion by awarding Wife $16,000 from his
annuity fund, but concedes that she is entitled to $8,000. He also argues that the trial court erred in
awarding Wife one half of the increase in value of the annuity fund during the second marriage.
Under the terms of the original divorce, Wife became entitled to $8,000 the moment that
Husband removed the money from the Colortype retirement fund.4 We hold that Wife is now entitled to
the $8,000 she should have received in 1995. In addition, since she was deprived of the opportunity to
invest those funds, Wife is entitled to 10% interest per annum on the $8,000 from the date the funds were
withdrawn until the date of the remarriage.5
The trial court ordered Husband to pay Wife $16,000, which apparently includes the $8,000
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which should have been paid to the parties’ children under the original divorce decree and the 1989
Opinion of this court. 6 We find no basis for the trial court to award the children’s $8,000 to Wife.
Accordingly, the trial court’s order is modified to award $8,000 plus interest as described above to
Wife.
The trial court also ordered that Wife be paid one half of the increase in value of Husband’s
annuity fund during the second marriage. Marital property includes retirement benefits, both vested and
unvested, that accrue during the marriage. See Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn.1996).
An interest in a retirement benefit plan is marital property subject to division under Tenn. Code Ann. §
36-4-121(a)(1) (1996). See Cohen, 937 S.W.2d at 830.
In Cohen, our Supreme Court reiterated three observations:
1) Only the portion of retirement benefits accrued during the marriage are marital
property subject to equitable division.
2) Retirement benefits accrued during the marriage are marital property subject to
equitable division even though the non-employee spouse did not contribute to the
increase in their value.
3) The value of retirement benefits must be determined at a date as near as possible to
the date of the divorce.
Id.
Accordingly, we agree that the increase in the value of Husband’s annuity fund during the second
marriage, $24,000, was marital property, and thus subject to equitable division.
Tenn. Code Ann. § 36-4-121(c) sets forth factors 7 which are intended to guide the court in
making an equitable distribution of marital property. Considering those factors and based on the record
which shows that Husband’s income is approximately four times greater than Wife’s, we cannot say that
the evidence preponderates against an even division of the increase in the annuity. Accordingly, we
affirm the trial court’s award of $12,000 to Wife as her share of the increase in the value of the annuity
fund during the marriage.
V.
Husband argues that the trial court abused its discretion by awarding Wife $750 per month until
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the house is sold and $1,000 per month after the sale as alimony in futuro. Husband contends that the
trial court failed to make a threshold determination that wife was not subject to rehabilitation prior to
awarding her alimony in futuro. Further, he argues that he does not have the ability to pay alimony at
the amount set by the trial court.
Tennessee law provides for three types of alimony: (1) rehabilitative alimony, which provides
modifiable, temporary support for a period of adjustment sufficient to enable a dependent spouse to
become partially or totally self-sufficient; (2) periodic alimony or alimony in futuro, a continuing, but
modifiable, support obligation to an economically disadvantaged spouse; and (3) alimony in solido, an
unmodifiable lump sum award which may be paid over time. Tenn. Code Ann. § 36-5-101(d)(1); see
Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App.1997). The legislature’s stated preference is for
rehabilitative alimony whenever possible. See Tenn. Code Ann. § 36-5-101(d)(1). A finding that
rehabilitation is "not feasible" is required before an award of alimony in futuro is appropriate. Id.; see
also Loria, 952 S.W.2d at 840.
In determining whether to award spousal support, the type of support, and the amount and
duration thereof, courts must consider a number of factors. See Tenn. Code Ann. § 36-5-101(d)(1). 8
The initial determination must be whether
one spouse is economically disadvantaged relative to the other. See id. In addition, the two most
important factors in setting spousal support are the demonstrated need of the disadvantaged spouse and
the obligor spouse's ability to pay. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Varley
v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App.1996). Because support decisions are factually driven
and involve considering and balancing numerous factors, appellate courts give wide latitude to the trial
court’s discretion. See Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App.1989).
Husband, age 45, earns $35,000 annually plus bonuses. In 1995 he earned $49,040, in 1996 he
earned $44,097, and in 1997 he earned $44,183. Wife is 42 years old and began working as a special
education school bus driver in 1992. She also works part-time cleaning a church. She earned $10,122
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in 1997 and $13,242 in 1996. Thus, Wife was significantly economically disadvantaged at the time of the
divorce relative to Husband, since he was earning approximately four times as much as she. He clearly
had greater earning potential at the time of divorce.
Wife’s income and expense statement claims expenses of $2,260 per month, with a $1,200 per
month negative difference between her income and her expenses. Husband claims monthly expenses of
$1,765, with a monthly surplus of income over expenses of $266. However, the gross income claimed
by Husband on his statement is only $32, 307, while the testimony showed that he had earned in excess
of $44,000 for the past three years and that his base salary is $35,000 per year. Using the $35,000
figure would increase Husband’s available gross monthly income by approximately $200, and using his
prior actual earnings would increase that amount by almost $1,000.
In its 1989 Opinion, this court found that Wife had not worked outside the home since the birth
of her first child in 1976 and she had “no particular work skills.” See Catignani, 1989 WL 126726 at
*2. The record before us in this appeal provides no information regarding Wife’s educational
background or training. Wife testified that she had an adenoma in her head and experienced migraine
headaches. There is no evidence regarding how these health problems affect her ability to work,
although Wife testified that she experienced migraines about twice a week and those headaches made her
unable to tolerate light or noise.
The trial court's failure to make a specific finding regarding the feasibility of Wife’s rehabilitation
does not preclude our review of the issue. See, e.g., Storey v. Storey, 835 S.W.2d 593, 597 (Tenn.
Ct. App.1992). In the 1989 Opinion, this court modified the trial court’s award of $150 per month in
rehabilitative alimony to extend the duration from fourteen months to “until such time as the wife has been
rehabilitated,” implicitly concluding that Wife was rehabilitatable. Ten years have gone by since that
Opinion was issued, but there is nothing in the record before us now which indicates that that conclusion
is no longer valid. Since that Opinion, Wife has, in fact, become employed as a school bus driver for ten
months of the year. Thus, Wife has made efforts at rehabilitation and has become partially self-sufficient.
We find that it is feasible that Wife can become self-sufficient or more self-sufficient if provided that
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opportunity through temporary rehabilitative support.
Accordingly, we find it appropriate to modify the trial court’s award of alimony in futuro to an
award of rehabilitative alimony. If, during the term of rehabilitative support, Wife demonstrates an inability
to be totally self-sufficient in spite of her reasonable rehabilitative efforts, the trial court may extend the
term of rehabilitative support or grant alimony in futuro to supplement Wife’s earning capacity. See
Loria, 952 S.W.2d at 838.
Having considered the statutory factors and the facts of this case, we are of the opinion that Wife
is entitled to rehabilitative alimony in the amount of $600 per month for five years. Husband is entitled to
a credit for the excess he has paid during the pendency of this appeal.
VI.
Lastly, Husband argues that the trial court erred in directing him to pay $2,610.77 in attorney
fees. In the context of a divorce proceeding attorney fee awards are considered as alimony in solido.
See Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. App.1988). The awarding of attorney fees lies
within the sound discretion of the trial court, and unless we find that the evidence preponderates against
such an award, we will not disturb it on appeal. See Storey, 835 S.W.2d at 597. Upon considering the
relative financial position of the two parties, including but not limited to the ability of each party to pay
their own attorney fees, we are of the opinion that the evidence does not preponderate against this
award. We affirm the award of attorney fees to Wife.
VII.
The judgment of the trial court is affirmed as modified herein. The proceeds from the sale of the
marital residence are to be divided equally between the parties after payment to Husband of $9,756.
Wife is awarded $8,000 plus interest from the date of her entitlement thereto, September, 1995, until the
date of the parties’ remarriage in June of 1996. Wife is also awarded $12,000 as her share of the
increase in the value of Husband’s retirement account during the second marriage. Wife is awarded
rehabilitative alimony in the amount of six hundred dollars ($600) per month for a period of five (5) years.
The case is
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remanded to the trial court for such further proceedings as may be necessary. Costs in this cause on
appeal are taxed to Appellant, for which execution may issue if necessary.
_________________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
____________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M. S.
_____________________________
WILLIAM B. CAIN, JUDGE
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Catignani v. Catignani
Combined Opinion