IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________
MARY ANN UMSTOT,
Plaintiff-Counter-Defendant/Appellee,
Vs. C.A. No. 02A01-9701-CV-00008
Shelby Circuit No. 150200 R.D.
EDWARD SHIRER UMSTOT,
Defendant-Counter-Plaintiff/Appellant.
____________________________________________________________________________
FROM THE SHELBY COUNTY CIRCUIT COURT
THE HONORABLE KAREN R. WILLIAMS, JUDGE
Daniel Loyd Taylor and James H. Taylor, III of Memphis
For Appellee
Hal Gerber and Karen R. Cicala of Memphis
For Appellant
REVERSED IN PART, AFFIRMED AS MODIFIED AND REMANDED
Opinion filed:
FILED
September 5, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE
DISSENTS IN PART, CONCURS IN PART
BY SEPARATE OPINION:
DAVID G. HAYES, JUDGE
This is a divorce case. Edward Shirer Umstot (Husband) appeals the order of the trial court
awarding a divorce, alimony in solido, and child support to Mary Ann Umstot (Wife).
The parties were married on August 16, 1977 and had two children during the marriage.1 At
the time of the divorce, Wife was 52 years old, and Husband was 53 years old. Husband is in
good health, but Wife was recently diagnosed with malignant melanoma. She testified that
she has a 40% chance of living another five years.
Wife works for Arlington Developmental Center as a medical technologist with a net
monthly income of $2,447.76 and at Methodist Hospital with a net monthly income of
$200.00. Wife has a defined benefits retirement plan with the State of Tennessee worth
$76,309.00.2 Husband is a research associate for the University of Tennessee-Memphis
earning $35,418.96 per year. Husband’s net monthly income is $2,271.64, and his retirement
benefits are worth $158,563.00. Husband’s retirement plan began with a balance of
$4,437.00 at the time of the marriage.
The parties owned an unencumbered marital residence. Wife presented expert testimony that
the real estate was worth $130,000.00, and Husband presented an expert witness who valued
the real estate at $146,571.00.3 The parties also owned four automobiles, various personal
property worth about $13,400.00, two individual retirement accounts each worth $2,715.23,
and government savings bonds worth $24,000.00. Each party maintained a separate bank
account. Wife inherited an annuity and some General Motors stock during the marriage.
In 1980, Wife had an affair with a co-worker, but she terminated the relationship after one
year. Husband testified that Wife was verbally abusive to him, was not supportive of him,
and withheld affection and sexual relations from him. In 1995, Husband contacted an ex-
girlfriend, Grover Lynn Irving, and reestablished a platonic relationship. Wife testified that
Husband and Irving talked on the telephone every day. Husband even informed the parties’
children about Irving and told Wife that he loved Irving more than he loved Wife. Husband
sent $7,500.00 to Irving and incurred long-distance phone bills of $2,500.00 talking to Irving.
Wife asked Husband to end this relationship, but he refused. After Wife told Irving to stop
calling the house, Husband purchased a beeper so he and Irving could continue to talk.
On September 22, 1995, Wife filed a complaint for divorce alleging irreconcilable
differences and inappropriate marital conduct. On October 9, 1995, Husband filed an answer
and a counter-complaint. In the answer, Husband admits irreconcilable differences, but
denies that he is guilty of inappropriate marital conduct. In his counter-complaint, Husband
agrees that the parties have irreconcilable differences and alleges that Wife is guilty of
inappropriate marital conduct. On May 6, 1996, Wife filed an answer that denied she was
guilty of inappropriate marital conduct.
On June 20, 1996, the trial court entered a final decree of absolute divorce that awarded the
divorce to Wife on the grounds of inappropriate marital conduct. The final decree granted
custody of the minor children to Wife with liberal visitation to Husband. Husband was
ordered to pay child support of $730.00 per month through May 1997, then to pay $479.00
per month. The trial court divided the marital assets and determined that the increase in
value of Husband’s retirement benefits was marital property. The trial court awarded
Husband’s interest in the marital residence, valued at $65,000.00, to Wife as alimony in
solido and awarded $2,500.00 as additional alimony in solido for Wife’s attorney’s fees.
Finally, the trial court ordered Husband to pay Wife $1,000.00 in a lump sum as child
support to help pay for the extraordinary educational expense of a trip to Europe by one of
the parties’ daughters.
Husband appeals the judgment of the trial court and presents five issues for review: 1)
whether the trial court erred in awarding Wife alimony in solido; 2) whether the trial court
erred in awarding Wife additional alimony in solido to pay her attorney’s fees; 3) whether the
trial court erred in its determination that the increase in the value of Husband’s separate
1
At the time of the divorce, one of the children was eighteen years old and the other
child was fifteen years old.
2
Wife’s expert, who valued the plan, testified that a defined benefit plan is a plan in
which a benefit is accumulated during one’s working years or tenure with a particular
employer that will ultimately be paid out upon retirement or the attainment of so many years
of service or a certain age.
3
The trial court accepted the lower value because the parties testified that the
property occasionally floods.
2
property was marital property; 4) whether the trial court erred in deviating from the child
support guidelines; and 5) whether the trial court erred in awarding a divorce to Wife only.
Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless
the evidence preponderates against the findings, we must affirm, absent error of law.
T.R.A.P. 13(d).
We will first consider Husband’s third issue. Because the valuation of Husband’s retirement
plan affects the division of the marital property, Husband argues that the trial court erred in
its determination that the increase in the value of his retirement plan was marital property.
The trial court determined that $4,437.00 of the value of Husband’s retirement plan was his
separate property and that $154,106.00, which represents the increase in value of the
retirement plan during the marriage, was marital property. The trial court awarded both the
$4,437.00 and the $154,106.00 to Husband. Husband asserts that the trial court allotted only
the original value of the pension at the time of the marriage, $4,437.00, as separate property.
He argues that the trial court should have also considered the interest earned on that portion
as separate property. He contends that only $131,000.00 of the increase in value is martial
property, instead of the full $154,106.00, because $23,106.00 of the interest accumulated on
the original amount of $4,437.00 and is therefore separate property. T.C.A. § 36-4-
121(b)(1)(B) provides:
“Marital property” includes income from, and any increase in value during the marriage, of
property determined to be separate property in accordance with subdivision (b)(2) if each
party substantially contributed to its preservation and appreciation and the value of vested
pension, retirement or other fringe benefit rights accrued during the period of the marriage.
T.C.A. § 36-4-121(b)(1)(B) (1996). Marital property includes retirement benefits, both
vested and unvested, that accrue during the marriage. 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 T.C.A. § 36-4-121(a)(1) (1996). Cohen, 937 S.W.2d at 830.
In Cohen, the 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.
Husband argues that the amount of the retirement benefits that accrued during the marriage
should not include the amount that accrued as a result of his separate property. He asks this
Court to separate the appreciation of the retirement plan into two income streams: one based
only on the separate property amount of $4,437.00 and one based on the contributions made
to the retirement plan during the marriage.
In an unreported case, this Court addressed the division of retirement funds:
We believe the trial court abused its discretion in awarding Wife $13,311 instead of half of
the total of the parties’ retirement accounts accumulated after the marriage. The trial court
was obviously influenced by his express finding that “a good portion of [the increase] has
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been passive income that has accrued since the parties’ marriage”; but the “passive” nature of
the accrual during the marriage is immaterial. T.C.A. § 36-4-121(b)(1)(B) provides that
marital property includes “the value of a vested pension, retirement or other fringe benefit
rights accrued during the period of the marriage.” (Emphasis Added). This code section
does not differentiate between value added by “passive income” and value added by
additional contributions during the marriage. The critical determination is whether the value
“accrued” during the marriage. In this case, everything in Husband’s thrift and profit sharing
plan, save the $5,091 in there at the time of the marriage, “accrued” after the marriage.
Franklin v. Franklin, No. 03A01-9410-CV-00364, 1995 WL 371573, at *2 (Tenn. App.
June 21, 1995). We agree with the reasoning of the Franklin Court that the critical
determination is whether the value “accrued” during the marriage. The statute is clear that
“the value of vested pension, retirement or other fringe benefit rights accrued during the
period of the marriage” is marital property. T.C.A. § 36-4-121(b)(1)(B) (1996). In this case,
all of Husband’s retirement plan, except $4,437.00, accrued during the marriage. The trial
court correctly held that $154,106.00 of the retirement plan was marital property.
In his first issue, Husband argues that the trial court erred in awarding alimony in solido to
Wife. Husband argues that Wife does not need the award, that he does not have the ability to
pay the award, and that the court’s perception of the relative fault, which can be considered in
an award of alimony, unfairly focused on him. In this case, the trial court awarded
Husband’s interest in the marital residence, valued at $65,000.00, to Wife as alimony in
solido.
Trial courts have broad discretion in dividing the marital estate upon divorce. Loyd v. Loyd,
860 S.W.2d 409, 411 (Tenn. App. 1993); Lancaster v. Lancaster, 671 S.W.2d 501, 502
(Tenn. App. 1984).
T.C.A. § 36-5-101(d)(1) provides:
It is the intent of the general assembly that a spouse who is economically disadvantaged,
relative to the other spouse, be rehabilitated whenever possible by the granting of an order for
payment of rehabilitative, temporary support and maintenance. Where there is such relative
economic disadvantage and rehabilitation is not feasible in consideration of all relevant
factors, including those set out in this subsection, then the court may grant an order for
payment of support and maintenance on a long-term basis or until the death or remarriage of
the recipient except as otherwise provided in subdivision (a)(3). Rehabilitative support and
maintenance is a separate class of spousal support as distinguished from alimony in solido
and periodic alimony. In 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 court shall consider all relevant factors,
including:
(A) The relative earning capacity, obligations, needs, and financial resources of each party,
including income from pension, profit sharing or retirement plans and all other sources;
4
(B) The relative education and training of each party, the ability and opportunity of each
party to secure such education and training, and the necessity of a party to secure further
education and training to improve such party’s earning capacity to a reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to, physical disability or
incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek employment outside the
home because such party will be custodian of a minor child of the marriage;
(G) The separate assets of each party, both real and personal, tangible and intangible;
(H) The provisions made with regard to the marital property as defined in § 36-4-121;
(I) The standard of living the parties established during the marriage;
(J) The extent to which each party has made such tangible and intangible contributions to the
marriage as monetary and homemaker contributions, and tangible and intangible
contributions by a party to the education, training or increased earning power of the other
party;
(K) The relative fault of the parties in cases where the court, in its discretion, deems it
appropriate to do so; and
(L) Such other factors, including the tax consequences to each party, as are necessary to
consider the equities between the parties.
T.C.A. § 36-5-101(d)(1) (1996).
Need and the ability to pay are the critical factors in setting the amount of an alimony award.
Smith v. Smith, 912 S.W.2d 155, 159 (Tenn. App. 1995); Lancaster, 671 S.W.2d at 503. In
Lancaster, this Court stated:
Alimony is not and never has been intended by our legislature to be punitive. See McClung
v. McClung, 29 Tenn. App. 580, 198 S.W.2d 820, 822 (1947). Nor do we believe it was
intended simply as an award for virtue. It is not designed to serve as an annuity for the wife;
or as Professor Clark has stated “[t]he purpose of alimony is to care for the wife’s needs after
divorce, not to provide her with a life-time profit-sharing plan.” H. Clark, Law of Domestic
Relations § 14.9(4) (1968).
Id. The propriety of awarding alimony as well as the adequacy of the amount awarded
depends upon the unique facts of each case. Butler v. Butler, 680 S.W.2d 467, 470 (Tenn.
App. 1984). The amount of alimony to be awarded is a matter for the trial court’s discretion
in view of the particular circumstances of the case, and the appellate courts are not inclined to
alter the awards except where the record reflects that such discretion has been abused.
Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. App. 1988).
Husband asserts that Wife’s net monthly income is more than his, that she has more separate
5
property, and that her income exceeds her expenses. Wife’s net monthly income is
$2,714.52, and Husband’s net monthly income is $2,271.64. In addition, Wife received
$730.00 per month until May 1997, and now receives $479.00 per month as child support
from Husband. Wife listed her monthly expenses as $3,356.00, which includes the expenses
for the children.
In light of the facts that Wife has a greater monthly net income than Husband and has
sufficient separate assets, we believe that the award of alimony in solido in this case was
excessive. After the trial court’s award of alimony in solido, Wife received $252,873.00 or
58% of the marital estate, and Husband received $181,621.00 or 42% of the marital estate.
We believe that the division of the marital assets in this case should approach a more
equitable division. However, we do believe that Wife should be the sole legal owner of the
marital residence to avoid any chance of a conflict in the future. Therefore, Wife should be
awarded Husband’s one-half interest in the marital residence, but in return, Wife should pay
$30,000.00, which should be paid as determined by the trial court. After Wife reimburses
Husband $30,000.00 for his share of the marital residence, Wife will have received
$222,873.00 or 51% of the marital estate, and Husband will have received $211,621.00 or
49% of the estate. We find that this division of the marital assets is more equitable
considering the circumstances of this case.
In his second issue, Husband argues that the trial court erred by awarding Wife $2,500.00 as
additional alimony in solido for her attorney’s fees. In determining whether to award
attorney’s fees, the trial court should again consider the relevant factors in T.C.A. §
36-5-101(d)(1). Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. App. 1995). When one
party demonstrates that it is financially unable to afford counsel, and when the other party has
the ability to pay, the court may properly order the other party to pay attorney’s fees. Id. An
award of attorney’s fees is within the sound discretion of the trial court, and unless the
evidence preponderates against the award, it will not be disturbed on appeal. Id. A spouse
with adequate property and income is not entitled to an award of additional alimony to
compensate for attorney’s fees and expenses. See Duncan v. Duncan, 686 S.W.2d 568
(Tenn. App. 1984).
In this case, Wife is able to afford counsel. She has separate assets that include $7,500.00 in
6
a bank account. We believe that the trial court should not have awarded Wife the additional
alimony in solido for her attorney’s fees.
In his fourth issue, Husband argues that the trial court erred in deviating from the Tennessee
Child Support Guidelines (Guidelines). The trial court ordered Husband to pay $1,000.00 as
child support to “help for the extraordinary educational expense of a trip to Europe by one of
the minor daughters.” Husband argues that an “extraordinary educational expense” implies a
necessary expense over and above the amount it would cost to send an average child to
school such as special education for the physically or mentally disabled or a more
challenging curriculum for a more gifted student. Husband asserts that a decision to spend
extra money on education “should be a decision based upon the opinion of a professional that
the added expense is needed, not just desired by the custodial parent or the minor child.”
The Guidelines provide for the upward adjustment of child support for extraordinary
educational expenses:
(1) Since these percentage amounts are minimums, the court shall increase the award
calculated in Rule 1240-2-4-.03 for the following reasons:
***
(c) Extraordinary educational expenses and extraordinary medical expenses not covered by
insurance shall be added to the percentage calculated in the above rule.
Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04-.04(1)(c) (1994).
In Dwight v. Dwight, 936 S.W.2d 945 (Tenn. App. 1996), this Court found that private
school tuition is not to be considered as a portion of child support under the Guideline
percentages and that child support can be adjusted upward for private school tuition. Id. at
950. The choice to send a child to private school is not one that must be made by a
professional to determine if the added expense is needed, and the courts have allowed upward
deviation for private school tuition without considering whose decision it was to send the
child to private school. In addition, private school tuition is never a “necessary” expense, and
the Guidelines do not say that the extraordinary educational expense must be “necessary.”
Likewise, in this case, we do not believe that the decision to send a child to Europe must be
made by a “professional,” and because extraordinary educational expenses are not limited to
“necessary” expenses, the trial court did not err in ordering Husband to pay $1,000.00 of his
7
daughter’s trip to Europe.4
Finally, Husband argues that the trial court erred in awarding a divorce to Wife only. He
asserts that the trial court ignored the numerous acts of inappropriate marital conduct on the
part of Wife. Wife admitted that she had an affair with a co-worker in 1980, and Husband
testified that there was an absence of love from Wife in the marriage and that Wife verbally
abused him. He stated that Wife never appreciated him or encouraged him. On the other
hand, Wife testified that she loved Husband and fully appreciated and cared for him.
The trial court awarded the divorce to Wife on the grounds of inappropriate marital conduct
and found that Husband’s relationship with Irving precipitated the divorce. Wife testified
that Husband told her that he loved Irving more than Wife and that he discussed his new
relationship with the parties’ children. The evidence showed that Husband lent Irving
$7,500.00 and spent $2,500.00 on phone bills. Finally, Husband testified that he happened to
find Irving’s phone number in the phone book while he was visiting the local library.
When the resolution of the issues in a case depends upon the truthfulness of witnesses, the
trial judge who has the opportunity to observe the witnesses in their manner and demeanor
while testifying is in a far better position than this Court to decide those issues. Mays v.
Brighton Bank, 832 S.W.2d 347, 351-52 (Tenn. App. 1992). The weight, faith, and credit to
be given to any witness’s testimony lie in the first instance with the trier of fact, and the
credibility accorded will be given great weight by the appellate court. Id. at 352.
We cannot say that the evidence preponderates against the trial court’s decision to award a
divorce to Wife on the grounds of inappropriate marital conduct.
Accordingly, the judgment of the trial court awarding attorney fees is reversed. The
judgment is modified to require Wife to pay Husband $30,000.00 for his equity in the marital
home, and, on remand, the trial court shall determine the manner for payment of this sum and
any necessary security for the payment. The judgment is affirmed in all other respects. Costs
of the appeal are assessed equally to the parties.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
4
We note that $1,000.00 is less than one-half of the cost of the trip.
8
CONCUR:
____________________________________
DAVID R. FARMER, JUDGE
____________________________________
DAVID G. HAYES, JUDGE
9