IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 17, 2016 Session - PDF

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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 17, 2016 Session ANDREA RENEA HOPWOOD v. COREY DANIEL HOPWOOD Appeal from the Chancery Court for Williamson County No Michael Binkley, Chancellor
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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 17, 2016 Session ANDREA RENEA HOPWOOD v. COREY DANIEL HOPWOOD Appeal from the Chancery Court for Williamson County No Michael Binkley, Chancellor No. M COA-R3-CV Filed June 23, 2016 This appeal concerns several issues relative to a divorce. We agree with the trial court that Mother is a candidate for rehabilitative alimony. We reverse the trial court as to the duration of the award, however, reducing the award to eight years. We also vacate the trial court s ruling with regard to the amount of the alimony award and remand to the trial court for reconsideration of Father s ability to pay alimony consistent with his other obligations. Finally, we reverse the trial court s award of attorney s fees anticipated to be incurred on appeal and vacate the trial court s award of all of Mother s requested attorney s fees, instead remanding to the trial court for a determination of only those fees attributable to child custody and child support. All other issues are affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part; Vacated in Part; and Remanded. J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which RICHARD H. DINKINS, and BRANDON O. GIBSON, JJ., joined. Robbie T. Beal and Erin W. Nations, Franklin, Tennessee, for the appellant, Corey Daniel Hopwood. Russ Heldman, Franklin, Tennessee, for the appellee, Andrea Renea Hopwood. OPINION Andrea Renea Hopwood ( Mother ) and Corey Daniel Hopwood ( Father ) were married on December 31, They were married for fourteen years and had four children. Mother filed for divorce against Father on October 1, 2012, alleging irreconcilable differences and inappropriate marital conduct. Father, through counsel, filed a counter-complaint on October 19, 2012, alleging irreconcilable differences, inappropriate marital conduct, and adultery. The parties attempted mediation twice, both of which were unsuccessful. The parties entered into several years of litigation. 1 Mother was awarded alimony pendente lite and possession of the marital home. During the years of litigation, Mother alleged that Father failed to properly and timely respond to discovery. Father s counsel was allowed to withdraw from representation in December The trial court eventually conducted a trial on February 2 and 3, Father was represented by counsel whom he had retained the week prior to trial. 2 Kalel, the parties fifteen-year old daughter, testified first. She stated that she wished to spend as much time as possible with Mother, as Mother is the parent who is most involved in her and her siblings lives. She also testified that Father disrespected Mother, often criticizing her efforts for the family and her intelligence. Kalel also alleged that Father tried to manipulate her and her siblings and video-taped their interactions with Father for evidentiary purposes. 3 Kalel also testified as to her and her siblings sleeping arrangements while in Father s care, which require the three younger siblings to sleep in a room with Father at his parents home, while Kalel is forced to sleep on a mattress on the floor of grandparents office. This office also contains an unlocked gun cabinet, but Kalel testified that she is familiar with firearms. Mother testified that the parties had married approximately fifteen years prior, when she was little more than a teenager. She stated that the parties relationship had been tumultuous from the beginning, with Mother describing Father as charming but manipulative and deceitful. She testified to several instances of domestic violence perpetrated by Father but admitted that when the parties previously separated as a result of these episodes, they later agreed to reconcile. During one separation in 2002, Mother had an extramarital affair; Mother informed Father of the affair years later in Mother testified that after the confession, Father s behavior toward her was worse than before. According to Mother, around this time, Father began threatening to file divorce proceedings approximately every six months. According to Mother, in 2002, the parties decided Mother should not seek employment outside the home. Up until the time of divorce, Mother had been the 1 The parties and the clerk are to be commended for fully complying with Rule 24 of the Tennessee Rules of Appellate Procedure in excluding extraneous discovery materials from the record in this cause. 2 Father s appeal counsel did not represent him at trial. 3 No such recordings were admitted into evidence children s primary caregiver because Father worked significant hours to financially provide for the family. Mother testified that it requires considerable time to take each of the parties four children to their various activities. Mother also testified as to several examples of why she believed Father could not properly parent the children, including Father s serious anger management issues, episodes of violence against the children, and his nightly drinking that occurred after Mother informed him of the affair. As to Father s income or business ventures, Mother testified that Father took care of most financial matters and that she was generally not privy to the finances during the marriage. Mother and her attorney, however, created a chart that was submitted as an exhibit outlining the deposits into the marital bank account attributable to Father from 2010 to Mother asserted that this exhibit showed income to Father around or in excess of $100, per year until Mother also testified that certain expenses, such as the parties cell phone bills or health insurance, were often paid directly by Father s companies or employers. Mother also testified to an incident where she found a significant amount of cash in Father s car, noting that Father often made cash deposits in the parties bank account. In 2013, Mother began working as a teacher s assistant, earning $11.83 per hour and working 35 hours per week. Mother also testified that she recently enrolled at a community college to allow her to teach math in the future. Mother testified that if she attended classes part-time, she anticipated graduating in eight years. Mother admitted on cross-examination, however, that she had not considered whether attending summer classes would decrease that time frame. Mother requested alimony in the amount of $2, per month for a minimum of fifteen years. Mother also detailed her valuation of the marital residence, asked that she be awarded the home in the divorce, and detailed her valuation and proposed division of other marital debts and assets. Father testified that he completed high school and one or two semesters of college. He has also obtained some technical certifications for Microsoft. Much of Father s testimony concerned his income and ownership interest in various companies in the years prior to the initiation of the divorce proceedings. Several times the trial court took issue with Father s answers, characterizing them as untruthful or evasive. According to Father, he began working as an employee for Pinnacle Technology ( Pinnacle ) in Father testified that he was eventually offered an ownership interest in Pinnacle. Father admitted that he had no documents that would evidence his interest in Pinnacle but testified that he made no capital contribution to the company. The testimony at trial was unclear as to Father s share in Pinnacle throughout his admitted involvement with the company, which may have been as great as 40% around Father testified, however, that at the time he allegedly sold his interest in Pinnacle, his share was approximately 25%. Father testified that he sold his ownership interest in Pinnacle in - 3 - 2012 for $40, Mother testified, however, that Father did not inform her of the sale until it had been completed and that he told her he only received approximately $25, from the sale. Father testified that Pinnacle s other partners, Jeff and Julian Cornett, had simply valued his interest at $40, and that Father had accepted that value as fair given that Father made no capital contribution to the company, despite the fact that Father agreed to transfer only 20% of the stock in Pinnacle to Julian Cornett in 2005 in exchange for a revolving line of credit of $100, Father testified that he never made more than $82, per year from Pinnacle. Father eventually left his employment with Pinnacle in 2013, citing the downturn of the business and his inability to make enough sales to cover his base salary of $60, Father also testified that prior to the divorce, he held ownership interests in other companies as well. First, Father testified that he became involved in Custom Renovations Group ( CRG ) between 2008 and Father testified that CRG purchased property that it rented out to Pinnacle. CRG is owned by Father and Jeff and Julian Cornett, Father s prior business partners at Pinnacle. Father paid approximately $16, for his one-third interest in CRG but testified that he sold his interest for $23,500.00, which funds he used to pay off the parties home equity line of credit. Father also testified as to his interest in Whole IT Solutions ( Whole IT ), Father s current business. Father first gained a one-third interest in Whole IT in Father testified that neither he nor the other two initial partners in Whole IT made any capital contributions to the company. Indeed, for several years the company made no income. After he left Pinnacle in 2013, Father gained a one-hundred percent interest in Whole IT and began working there full-time. Father testified that when he took control of Whole IT, there was only one remaining partner whom Father did not pay for the relinquishment of his interest. Father testified, however, that he did deposit the proceedings from the sale of his Pinnacle interest into Whole IT. Father testified that he earns approximately $60, per year from his current employment. Father also testified about the parties debts and disputes Mother s classification of the parties credit card debts. He denied Mother s testimony regarding the domestic violence and denied ever intentionally slapping his wife. During trial, he stated that he was living in his van when he was not caring for the children. The trial court issued its over forty page written ruling on April 18, In its ruling, the trial court made detailed findings with regard to Father s lack of credibility, citing Father s vague, inconsistent, and often evasive answers to questions. In contrast, the trial court found that Mother s testimony was consistent and credible. The trial court granted Mother a divorce on the ground of inappropriate marital conduct and designated Mother primary residential parent of the children. Father was awarded weekly visitation with the children. The trial court also divided the parties marital property, awarding - 4 - Mother the marital residence and accompanying debt based upon her valuation of the property. Since Father offered no documents to support his claim that he retained only an approximate 25% interest in Pinnacle at the time he purportedly sold his interest, the trial court set Father s share of Pinnacle at 40%. The trial court further found that with regard to Father s interest in Pinnacle, Father was either concealing his interest or had dissipated his interest in anticipation of divorce. Because the trial court found that no credible evidence had been submitted regarding Pinnacle s value in recent years, the trial court considered what it found to be the only competent evidence on this issue that in 2005, Father and Jeff Cornett agreed to transfer 20% of Pinnacle to Julian Cornett for a revolving line of credit in the amount of $100, to value Father s 40% interest in Pinnacle at $200, Taking this value as well as the trial court s values of Father s other business interests, the trial court awarded Mother $169, in alimony in solido to equalize the parties property division. The trial court also found that Father was voluntarily underemployed and/or engaged in a scheme to lower his income for divorce purposes and therefore considered Father s tax returns and other financial documents from 2010 to 2014 to set Father s earning capacity at between $100, and $110, per year. Father s child support obligation was determined to be $2, per month based on an income of $100, per year. After considering several factors, including Father s ability to pay, Mother s need, and Mother s role as caregiver during the parties marriage, the trial court awarded Mother rehabilitative alimony of $2, per month for 180 months, or 15 years. The trial court also awarded Mother $42, in attorney s fees. The trial court later awarded Mother discretionary costs and an additional $3, in attorney s fees in contemplation of this appeal. Issues Presented Father raises several issues in his appellate brief, which we have slightly restated and reordered as follows: 1. Whether the trial court erred in applying Tennessee Code Annotated Section (a) by failing to maximize the participation of Father in the lives of the children and erred in ordering a permanent parenting plan that did not serve the children s best interest. 2. Whether the trial court erred in awarding Mother an alimony in solido judgment in the amount of $169, as an equitable division of marital assets and liabilities. 3. Whether the trial court erred in granting all equity in the marital residence to Mother and failing to make an equitable distribution of the parties assets and debts 4. Whether the trial court erred in calculating Father s income for child support purposes. 5. Whether the trial court erred in the amount and duration of alimony awarded to Mother and erred in requiring Father to insure the alimony obligation in the amount of $350, (via life insurance policy). 6. Whether the trial court erred in granting Mother all of her attorney s fees, discretionary costs, and a post-trial award of attorney s fees for appeal. In the posture of Appellee, Mother also seeks an award of attorney s fees on appeal. Discussion Parenting Plan Father first argues that the trial court erred in awarding Mother significantly more time with the children. Here, the trial court named Mother primary residential parent of the children and awarded her 265 days and Father 110 days, 4 consisting of every other weekend and two hours every Wednesday evening. Because this case was tried by the court, sitting without a jury, we review the factual issues de novo upon the record with a presumption of correctness. Tenn. R.App. P. 13(d). Unless the evidence preponderates against the trial court s findings, we must affirm, absent error of law. Id. In order for the evidence to preponderate against the trial court s findings, it must support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). In applying the de novo standard, we are mindful that [t]rial courts are vested with wide discretion in matters of child custody and that the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion. Aragon v. Aragon, No. M COA-R3-CV, 2014 WL , at *3 5 (Tenn. Ct. App. Apr. 21, 2014) (quoting Hyde v. Amanda Bradley, No. M COA-R3-JV, 2010 WL , at *3 (Tenn. Ct. App. Oct. 12, 2010)). Because [c]ustody and visitation determinations often hinge on subtle factors, including the parents demeanor and credibility during... proceedings, appellate courts are reluctant to second-guess a trial court s decisions. Hyde, 2010 WL , at *3. Accordingly, appellate courts review a trial court s decision regarding which parent to name as the primary residential parent 4 Both parties admit that this award involves a mathematical error. The parties shall abide by the schedule of days contained in the permanent parenting plan, rather than the trial court s calculation of days for an abuse of discretion. See Fulbright v. Fulbright, 64 S.W.3d 359, 365 (Tenn. Ct. App. 2001) (citation omitted); see also Porter v. Porter, No. M COA-R3- CV, 2013 WL , at *14 (Tenn. Ct. App. 2013) (Kirby, J., concurring) (declining to reverse the trial court s ruling only because of the high standard required under abuse of discretion review). [A] trial court s decision regarding custody or visitation should be set aside only when it 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. Curtis v. Hill, 215 S.W.3d 836, 839 (Tenn. Ct. App. 2006) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). Thus, it is not within the province of appellate courts to tweak a parenting plan in hopes of achieving a better result than the trial court. See Eldridge, 42 S.W.3d at 88. As our Supreme Court has explained: When no error in the trial court s ruling is evident from the record, the trial court s ruling must stand. This maxim has special significance in cases reviewed under the abuse of discretion standard. The abuse of discretion standard recognizes that the trial court is in a better position than the appellate court to make certain judgments. The abuse of discretion standard does not require a trial court to render an ideal order, even in matters involving [parental responsibilities], to withstand reversal. Reversal should not result simply because the appellate court found a better resolution. See State v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986) ( appellate court should not redetermine in retrospect and on a cold record how the case could have been better tried ); cf. State v. Pappas, 754 S.W.2d 620, 625 (Tenn. Crim. App.1987) (affirming trial court s ruling under abuse of discretion standard while noting that action contrary to action taken by the trial court was the better practice); Bradford v. Bradford, 51 Tenn. App. 101, 364 S.W.2d 509, (1962) (same). An abuse of discretion can be found 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. See, e.g., State ex. rel Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). Eldridge, 42 S.W.3d at 88. The trial court s discretion, however, is not unbounded. Hogue, 147 S.W.3d at 251.The court must base its decision upon proof and apply the appropriate legal principles. Id. Tennessee Code Annotated Section (a) provides Tennessee courts with a - 7 - non-exclusive list of factors to be considered when fashioning a residential schedule for a child. In addition, Section (a) states that a court fashioning a parenting plan shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the child s best interest. Here, the trial court made an exhaustive review of the various applicable factors. First, the trial court found that Mother served as the primary caregiver for the children. See Tenn. Code Ann (a)(5) (involving the degree to which a parent has been the primary caregiver ). The trial court also found that Mother exhibited a willingness to encourage a relationship between the children and Father. See Tenn. Code Ann (a)(1) (involving the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child s parents ). The trial court also considered Mother s involvement and emotional bond with the children, which the trial court characterized as greater than that between Father and the children. See Tenn. Code Ann (a)(1) (involving the strength, nature, and stability of the child s relationship with each parent ). Finally, the trial court considered the substantial evidence regarding Father s emotionally and sometimes physically abusive behavior. See Tenn. Code Ann (a)(11) (involving
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