Maryam Mubashir v. Mubashir Mahmood

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 6, 2013 Session

MARYAM MUBASHIR v. MUBASHIR MAHMOOD

Appeal from the Chancery Court for Hamblen County
No. 2006-744 Thomas R. Frierson, II, Chancellor

No. E2013-00480-COA-R3-CV-FILED-FEBRUARY 19, 2014

This appeal arises from a divorce. Maryam Mubashir (“Wife”) sued Mubashir Mahmood
(“Husband”) for divorce in the Chancery Court for Hamblen County (“the Trial Court”). The
Trial Court granted the divorce. Husband appeals, raising numerous issues concerning
parenting time, arrearages, and alimony. We modify the judgment of the Trial Court as it
pertains to certain arrearages and Husband’s parenting time with the parties’ children.
Otherwise, we affirm the judgment of the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and J OHN W. M CC LARTY, J., joined.

Douglas R. Beier, Morristown, Tennessee, for the appellant, Mubashir Mahmood.

J. Eric Harrison, Morristown, Tennessee, for the appellee, Maryam Mubashir.
 OPINION

Background

In December 2006, Wife sued Husband, a physician, for divorce in the Trial
Court. Wife and Husband had been married since 1997. Their marriage produced three
children (“the Children”). The parties divorced in 2009. This divorce case, which has been
before us on appeal once before1 , has proven contentious. Years after the divorce and now
on appeal for a second time, the issues have changed. To elucidate the background of these
issues, we look to the original judgment. In its 2009 order, the Trial Court made the
following pertinent findings:

[Wife] has completed her cosmetology course of instruction. She is
preparing to obtain the necessary licensing for her employment in this field.
Presently, [Wife] is not employed outside the home and therefore, maintains
no income. [Husband] continues to be employed by Healthstar Physicians, P.C.
in Morristown, Tennessee.

***

The Court has considered the guardian ad litem’s participation in this
proceeding to the extent permitted by Tennessee Supreme Court Rule 40A.
During the marriage and continuing after the parties’ separation, mother, as the
primary caregiver for the children, has taken the greater responsibility for
performing parental responsibilities. Although both parents maintain loving
and emotional ties with the children, the emotional needs and developmental
levels of the minors are being primarily provided for by mother.

Both parents appear appropriately disposed to provide the children with
food, clothing, medical care, education and other necessary care. Mother’s
home provides a stable, secure environment for the children. She manifests an
ability to instruct and encourage the children in preparing them for a life of
service, as well as to compete successfully in society.

1
We heard the appeal of the parties’ divorce in the case of Mahmood v. Mubashir, No. E2010-00154-
COA-R3-CV, 2011 WL 1744125 (Tenn. Ct. App. May 4, 2011), no appl. perm. appeal filed. In that opinion,
we dismissed the appeal as premature because, among other things, the issue of attorney’s fees remained
unresolved. Id. at *1.

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 Since the parties’ separation, communication between them has been
significantly limited . . . .

***

The parties are the owners in fee simple of certain improved,
investment real property located at 7942 Sea Pearl Circle, Kissimmee, Florida.
The evidence preponderates in favor of a finding that the real property
maintains a current tax appraisal value of $407,100.00. The property is
encumbered by the liens of mortgage indebtedness with a combined
outstanding balance of approximately $482,000.00. Combined taxes and
assessments with regard to this investment property total $9,952.21 annually.
This Court concludes that there presently exists no equity with regard to this
real property. The Court awards to [Husband] this improved real property
located at 7942 Sea Pearl Circle, Kissimmee, Florida. [Husband] will be solely
responsible for payment as due of all mortgage indebtedness, liens and
encumbrances, including, but not limited to, real property taxes and
assessments.

***

The evidence preponderates in favor of a determination that significant
marital debt has accrued during the marriage. The Court finds that total debt
in the approximate amount of $3,173,000.00 currently exists. This Court
incorporates by reference the specific amounts as identified by Trial Exhibit
50. The Court further determines that the credit card indebtedness owed to
Chase Bank, U.S.A. in the approximate amount of $30,000.00 is the sole
obligation of [Wife]. Likewise, [Wife] is responsible for payment of certain
medical expenses she previously incurred. [Wife] shall be responsible for
paying these indebtednesses, holding [Husband] harmless from any liability in
connection therewith.

With reference to the previous sale of certain properties, the parties
have incurred tax liability to the Internal Revenue Service in the approximate
amount of $109,000.00. The parties shall equally share and be responsible for
payment of this debt. With regard to all remaining indebtedness as identified
on Trial Exhibit 50, the Court directs that [Husband] shall be solely
responsible for repayment thereof, holding [Wife] harmless from any liability
in connection therewith. In addition, each party shall be responsible for

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 repayment of any indebtedness which he/she has incurred since the time of the
separation.

***

The evidence preponderates in favor of a finding that for wife,
rehabilitation is not necessary due to the recent completion of her course of
study, but as an economically disadvantaged spouse, she needs assistance to
adjust to the economic consequences of this divorce. This Court concludes
that wife is entitled to an award of transitional alimony at the rate of $3,000.00
per month for a period of 48 months following the Final Judgment. This
award of transitional alimony shall terminate upon any remarriage by wife.
The obligation shall continue to be paid through income assignment order.

(Internal footnotes omitted). The Trial Court awarded Wife attorney’s fees as alimony in
solido but did not set an amount. On appeal, we remanded because of unresolved issues such
as the matter of attorney’s fees. On remand, additional hearing and procedural moves
occurred. Wife moved to Texas with the Children, as well.

In January 2013, the Trial Court entered a new order. The Trial Court made
numerous additional findings. As to his parenting time, Husband was awarded the following:
fall vacations on even-numbered years; half of the two weeks for Christmas vacation; five
weeks in the summer and every spring vacation; and, holiday time, but not weekends
connected to the holidays. Husband’s parenting time was reduced from 159 to 57 days. The
Trial Court approved Wife’s relocation to Texas. The Trial Court acknowledged that, based
on certain payments made by Husband, a $109,000 IRS debt owed by the parties had been
released. The Trial Court, however, did not credit any amount of this payment to Husband’s
arrearage. Wife’s attorney’s fees were set at $12,000. The Trial Court failed to address both
$10,000 that Husband paid to Wife from the sale of property awarded to Husband and an
additional $1,000 Husband paid to Wife. Husband appeals.

Discussion

Though not stated exactly as such, Husband raises the following issues on
appeal: 1) whether the Trial Court erred in declining to grant Husband parenting time on
weekends and certain holiday weekends; 2) whether the Trial Court erred in declining to
credit Husband toward his arrearage for $10,000 he paid Wife from the proceeds of the sale
of property awarded to Husband as well as an additional $1,000 Husband paid to Wife; 3)
whether the Trial Court erred in awarding Wife a judgment of $36,091.36 for pendente lite
support from May 22, 2007 to March 25, 2008; 4) whether the Trial Court erred in awarding

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Wife a judgment of $33,980.84 for pendente lite support from March 25, 2008 until the entry
of final judgment on December 22, 2009; 5) whether the Trial Court erred in declining to
give Husband a credit for the amount he paid to the IRS for Wife’s share of the parties’ tax
debt; and, 6) whether the Trial Court erred in awarding attorney’s fees to Wife as alimony
in solido. For her part, Wife raises the issue of whether the Trial Court should have awarded
her all of her requested attorney’s fees.

Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001). This appeal involves divorce and parenting-related issues. A trial court has wide
discretion in dividing the interest of the parties in marital property. Barnhill v. Barnhill, 826
S.W.2d 443, 449 (Tenn. Ct. App. 1991). Trial courts also have broad discretion to determine
whether alimony is needed and, if so, the nature, amount, and duration of support. See
Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996).

We first address whether the Trial Court erred in declining to grant Husband
parenting time on weekends and certain holiday weekends. Wife was designated Primary
Residential Parent of the Children. Under the initial arrangement, Husband received 159
days of parenting time. Wife later moved with the Children to Texas. Husband ultimately
received 57 days of parenting time with the Children. On appeal, Husband argues that he
should be granted weekends with the Children on an alternating basis. Alternatively,
Husband requests parenting time on weekends adjacent to his holiday parenting time.
According to Husband, the Children’s best interests are not served by the omission of his
weekend time or weekends connected to holidays awarded to him.

Our Supreme Court recently stated on the subject of parenting arrangements:

Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, Holloway v.
Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948
S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the opportunity
to observe the witnesses and make credibility determinations, are better
positioned to evaluate the facts than appellate judges. Massey–Holt v. Holt,
255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus, determining the details of
parenting plans is “peculiarly within the broad discretion of the trial judge.' ”
Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988) (quoting Edwards v.
Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is not the function

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 of appellate courts to tweak a [residential parenting schedule] in the hopes of
achieving a more reasonable result than the trial court.” Eldridge v. Eldridge,
42 S.W.3d 82, 88 (Tenn. 2001). A trial court's decision regarding the details
of a residential parenting schedule should not be reversed absent an abuse of
discretion. Id. “An abuse of discretion occurs when the trial court . . .
appl[ies] an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on reasoning
that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
2011). A trial court abuses its discretion in establishing a residential parenting
schedule “only when the trial court's ruling falls outside the spectrum of
rulings that might reasonably result from an application of the correct legal
standards to the evidence found in the record.” Eldridge, 42 S.W.3d at 88.

Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013).

With respect to relocations, this Court has stated:

The Court is empowered to change the previous plan when a relocation
occurs. See Tenn. Code Ann. § 36-6-108(b). The modified plan is appropriate
to the new circumstances of the parties, and does not significantly alter the
original plan such that the father is harmed by the changes. The modified plan
further safeguards the father's time with the children, and only changed what
was necessary to fit the practicalities of the new living arrangements of the
children. We find no error in the Court's implementing the new plan.

Bell v. Bell, No. E2004-02964-COA-R3-CV, 2005 WL 2860284, at *6 (Tenn. Ct. App. Oct.
31, 2005), no appl. perm. appeal filed.

Mindful of our Supreme Court’s directive that we are not to tweak or micro-
manage the plans entered by trial courts in these matters, we nevertheless find logic in
Husband’s request. Specifically, we find that attaching weekends to those adjacent holidays
awarded to Husband is a logical common sense accommodation that is in the best interest of
the Children. This relatively minor alteration does not undermine the essence of the plan
while giving the Children more time with Husband. We remand this case to the Trial Court
to modify parenting time so as to give Husband the weekends adjacent to those holidays
awarded to Husband.

We next address whether the Trial Court erred in declining to credit Husband
toward his arrearage for $10,000 he paid Wife from the proceeds from the sale of property,
as well as an additional $1,000 Husband paid to Wife. Wife presents no compelling

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argument as to why Husband should not receive credit for the $10,000 paid to Wife from the
sale of property awarded to Husband. It seems to us both fair and equitable that Husband
receive credit for this payment. We hold that Husband should be credited toward his
arrearage and attorney’s fees awarded Wife for this $10,000.

Also at issue is an additional $1,000 Husband paid Wife. Wife argues that the
$1,000 Husband paid to her was gratuitous and unsolicited. There is a relative lack of
evidence with respect to this sum of $1,000, and we see no reason to disturb the Trial Court’s
implicit decision not to give Husband a credit for the $1,000. We find that the evidence does
not preponderate against the Trial Court’s declining to credit the $1,000 payment made by
Husband to Wife toward Husband’s arrearage.

Continuing with Husband’s issues, we now address whether the Trial Court
erred in awarding Wife a judgment of $36,091.36 for pendente lite support from May 22,
2007 to March 25, 2008. Husband argues that because the Trial Court went on to reduce
Husband’s prospective obligations, it should have provided retroactive relief as well. We
find this argument unavailing. The evidence does not preponderate against the Trial Court’s
findings relevant to this issue. It was within the sound discretion of the Trial Court to set
support as it did, and no rule or law compels the mechanical result sought by Husband. We
affirm the Trial Court as to this issue.

We next address the similar issue of whether the Trial Court erred in awarding
Wife a judgment of $33,980.84 for pendente lite support from March 25, 2008 until the entry
of final judgment on December 22, 2009. Husband again argues that because the Trial Court
ultimately reduced his prospective support obligation, the Trial Court erred in failing to
provide retroactive relief. Again, we do not agree that where a trial court reduces a
prospective support obligation, it axiomatically follows that retroactive relief is required lest
there be an abuse of discretion. Husband cites to no authority in favor of such a proposition,
and nothing in the record hints at reversible error on this issue. We affirm the Trial Court.

We next address whether the Trial Court erred in declining to give Husband
a credit for the amount he paid to the IRS for Wife’s equal share of the tax debt. The Trial
Court did find that the IRS debt had been released because of payments by Husband. Wife
argues that since she had no income at all during the marriage, and, as she allegedly was
forced into many financial ventures by Husband, she should not be assigned the debt at all.
Alternatively, Wife argues that Husband, at most, should be given credit as a payment
towards his arrearages and attorney fees owed Wife.

The Trial Court held that the tax debt was to be shared equally between the
parties. The evidence does not preponderate against this assignment of debt. Husband has

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since extinguished the tax debt. As a matter of fundamental fairness and consistent with the
Trial Court’s assigning this debt equally between the parties, it is appropriate that Husband
receive credit toward his arrearage and attorney’s fees awarded Wife for the amount he paid
for Wife’s share of the tax debt. We remand for the Trial Court to give Husband a credit
toward his arrearage and attorney’s fees awarded Wife for his payment of Wife’s share of the
tax debt.

The last issue we address is that of Wife’s attorney’s fees. Wife requested
$18,247.50 in attorney’s fees. In the end, the Trial Court awarded Wife $12,000.00 in
attorney’s fees. Wife argues that she should have been awarded all of her requested
attorney’s fees. Husband, on the other hand, argues that Wife will have the ability post-
divorce to pay her own attorney’s fees and that an award of attorney’s fees therefore is
inappropriate.

With respect to the award of attorney’s fees in divorce cases, our Supreme
Court has stated:

It is well-settled that an award of attorney's fees in a divorce case
constitutes alimony in solido. The decision whether to award attorney's fees
is within the sound discretion of the trial court. As with any alimony award,
in deciding whether to award attorney's fees as alimony in solido, the trial
court should consider the factors enumerated in Tennessee Code Annotated
section 36–5–121(i). A spouse with adequate property and income is not
entitled to an award of alimony to pay attorney's fees and expenses. Such
awards are appropriate only when the spouse seeking them lacks sufficient
funds to pay his or her own legal expenses or the spouse would be required to
deplete his or her resources in order to pay them. Thus, where the spouse
seeking such an award has demonstrated that he or she is financially unable to
procure counsel, and where the other spouse has the ability to pay, the court
may properly grant an award of attorney's fees as alimony.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (citations omitted).

Husband’s argument against attorney’s fees for Wife is based on Wife’s
“anticipated income, spousal support and child support.” This future-based conjecture is
insufficient. The Trial Court awarded attorney’s fees based on the parties’ relative
circumstances, and this award is reasonable in light of the financial disparities between the
parties as reflected in the record on appeal. Likewise, regarding Wife’s arguments, we see
no reason to second guess the Trial Court’s decision regarding the specific amount of

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attorney’s fees awarded. We find no reversible error in the Trial Court’s award of attorney’s
fees to Wife. We affirm the Trial Court as to this issue.

Conclusion

We remand this case for the Trial Court to implement the following: 1) grant
Mubashir Mahmood additional parenting time on weekends adjacent to holidays awarded to
him; 2) give Mubashir Mahmood credit toward his arrearage and attorney’s fees awarded to
Maryam Mubashir for the $10,000 he paid Maryam Mubashir from the proceeds from the
sale of property awarded to Mubashir Mahmood; and, 3) give Mubashir Mahmood credit
toward his arrearage and attorney’s fees awarded Maryam Mubashir for Mubashir
Mahmood’s payment of Maryam Mubashir’s equal share of the tax debt. Otherwise, the
judgment of the Trial Court is affirmed as so modified. The costs on appeal are assessed
one-half against the Appellant, Mubashir Mahmood, and his surety, if any; and, one-half
against the Appellee, Maryam Mubashir.

_________________________________
D. MICHAEL SWINEY, JUDGE

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