Archer v. Archer

Decision Date21 April 1995
Citation907 S.W.2d 412
PartiesEllen Percy ARCHER, Plaintiff/Appellee, v. Robert Neil ARCHER, III, Defendant/Appellant.
CourtTennessee Court of Appeals

Daniel Loyd Taylor, Michael B. McWherter, Taylor & McManus, Memphis, for appellant.

James C. Cox, Russell Fowler, Memphis, for appellee.

OPINION

PAUL G. SUMMERS, Special Judge.

The parties were divorced in 1984. In 1992, appellee Ellen Percy Archer (Ms. Archer) filed a petition for contempt and alimony arrearages in the Circuit Court at Shelby County against appellant Robert Neil Archer, III (Mr. Archer). Mr. Archer filed a petition asking the court to reduce the amount of his monthly alimony obligation and to award child support to him. The court awarded $56,068.02 in alimony arrearages and $13,432.31 in attorney's fees to Ms. Archer. The court reduced Mr. Archer's monthly alimony obligation, but dismissed his claim for child support. The court dismissed Ms. Archer's contempt allegations. Mr. Archer has appealed.

The parties present the following issues for our review:

I. Whether Ms. Archer's claim to alimony arrearages is barred by the equitable defense of laches.

II. Whether the evidence in the record supports the trial court's award of $56,068.02 in alimony arrearages.

III. Whether the trial court erred in failing to award Mr. Archer child support from Ms. Archer.

IV. Whether the trial court erred in awarding Mrs. Archer $13,432.31 in attorney's fees.

V. Whether the trial court erred in dismissing Ms. Archer's allegations of contempt against Mr. Archer.

We affirm in part, reverse in part, and remand to the trial court for action consistent with this opinion.

In July of 1984, the trial court granted Ms. Archer a divorce from Mr. Archer on grounds of irreconcilable differences. Ms. Archer received custody of the parties' three minor children, then ages 15, 11 and 7. Pursuant to the property settlement agreement (PSA), Mr. Archer agreed to pay the children's medical insurance and expenses, private elementary and secondary school tuition, college tuition and education related expenses. No other child support was ordered. Pursuant to the PSA, however, Mr. Archer agreed to pay $2,500.00 in alimony per month, beginning February 15, 1984, plus a yearly cost-of-living increase adjustment to this payment.

In October 1985 and January 1987, Ms. Archer filed petitions against Mr. Archer for noncompliance with the PSA. She asked the court to order Mr. Archer to comply with certain provisions of the PSA which she clearly set out in her petitions. The court dismissed both of Ms. Archer's petitions, apparently due to an agreement of the parties or because Mr. Archer complied with the alleged violations of the PSA. Ms. Archer did not raise the specific issue of alimony arrearages, 1 although she did ask the court to award her arrearages generally.

In February of 1987, Mr. Archer filed a petition informing the court that he was unable to meet the financial demands of the PSA because of changed circumstances. He asked the court to modify the PSA and to forgive any accrued arrearages. Whether or how the court disposed of the petition is unclear from the record.

In April of 1991, Ms. Archer filed a petition for permission to move the parties' minor child to North Carolina because of the child's behavioral and substance abuse problems. She also asked the court to hold Mr. Archer in contempt for failing to pay the child's medical expenses. The court entered a consent order allowing removal of the child. The court continued the contempt allegations.

In June of 1991, Ms. Archer amended her contempt petition to claim alimony arrearages based on Mr. Archer's failure to pay the cost-of-living increase. This was the first time that she asserted a right to alimony arrearages. The court denied and dismissed the contempt petition at Ms. Archer's cost. The court did not address the alimony arrearage issue.

In August of 1992, Mr. Archer filed a petition for a credit against his alimony obligation because of expenses that he incurred on behalf of the child or for child support. He also asked the court to reduce his alimony obligation because of changed circumstances. In October of 1992, Ms. Archer filed a petition for contempt and for alimony arrearages. She alleged that Mr. Archer should have paid her $316,068.02 in alimony, including the cost-of-living increase, from February 15, 1984 through September 15, 1992. She alleged that Mr. Archer owed her $56,068.02 in alimony arrearages based on his failure to pay the cost-of-living increase. Mr. Archer responded that Ms. Archer's claim to arrearages was barred by laches. He alleged that Ms. Archer told him that she would not need the cost-of-living increase beyond that already paid and that he relied on her position to his detriment. He noted that she asked for the alimony arrearages after his petition for a reduction in alimony or for child support.

In March of 1993, the trial court referred the matter to a Special Master to determine any and all sums owed by Mr. Archer to Ms. Archer and to determine the income, and assets and liabilities of both parties.

The Special Master's report included the following recommendations: 1) Mr. Archer should pay $700.00 per month in alimony to Ms. Archer with the court to reevaluate his financial position in January 1994; 2) Mr. Archer's defense of laches should be rejected; 3) "It is recommended that the Court enter a judgment against Mr. Archer for $56,068.02, plus any arrearages accumulated through December 31, 1992, together with interest accumulated thereon. If counsel for the respective parties cannot come to an agreement as to this amount, I will be happy to calculate same[;]" 4) Ms. Archer should not be required to pay child support because such an order would violate the PSA; 5) Mr. Archer should pay $13,432.31 in attorney's fees to Ms. Archer because his failure to abide by the terms of the PSA has caused extensive litigation; 6) Mr. Archer should be held in contempt for failure to comply with the PSA.

The trial court confirmed the Special Master's report, except that she ordered Mr. Archer to pay $500 in monthly alimony payments, and she refused to find Mr. Archer in contempt of court because Ms. Archer had "allowed a pattern of payment to continue without contest."

STANDARD OF REVIEW

The court's order referencing certain matters to the Special Master, the Special Master's report, and the trial court's order affect our standard of review on appeal. A concurrent finding of a master and a trial court is conclusive on appeal, except where it is upon an issue not proper to be referred, where it is based on an error of law or a mixed question of fact and law, or where it is not supported by any material evidence. Coates v. Thompson, 713 S.W.2d 83, 84 (Tenn.Ct.App.1986). This standard of review is similar to our standard when reviewing a jury verdict; we must affirm if there is any material evidence to support the trial court's concurrence. See Id.; T.R.A.P. 13(d). This standard of review, however, does not apply to the issues in this case. The Special Master went beyond the court's order of reference, and he decided all of the issues in the case. The main issues of a controversy and the principles on which these issues are to be adjudicated must be determined by the trial court. State v. Bolt, 130 Tenn. 212, 169 S.W. 761, 762 (1914); Ingram v. Stein, 23 Tenn.App. 105, 126 S.W.2d 891, 892 (1938). Collateral, subordinate, and incidental issues and the ascertainment of ancillary facts are matters properly referred to a special master. Ingram, 126 S.W.2d at 892. In this case, the Special Master's report is a statement of legal conclusions, and it contains very few findings of fact.

Given these circumstances, ordinarily our review of the trial court's determinations would be de novo with a presumption that the trial court's findings of fact are correct. See T.R.A.P. 13(d). The trial court, however, did not make any findings of fact, written or otherwise. When the trial court fails to make findings of fact there is nothing to which the presumption of correctness can attach. In such a situation, our review is de novo without a presumption of correctness. Goodman v. Memphis Park Comm'n, 851 S.W.2d 165, 166 (Tenn.Ct.App.1992); Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.Ct.App.1984). Accordingly, we proceed to review the evidence and the issues in this case de novo.

ALIMONY ARREARAGES

The PSA provides as follows:

ALIMONY

2-a. Periodic Alimony. As periodic alimony, Husband agrees to pay to Wife the sum of Two Thousand Five Hundred Dollars ($2,500.00) per month, commencing February 15, 1984. Said payments shall be due and payable directly to Wife on the fifteenth (15th) day of each and every month thereafter until her death or remarriage.

2-b. Cost of Living Adjustment. In addition to the amount payable in Paragraph 2-a above, Husband agrees to increase his periodic alimony obligations on a yearly basis to insure that the real value of these obligations is not impaired by economic conditions.

(1) At the end of the first year in which periodic alimony is paid, and at the end of each and every year thereafter, Husband shall calculate a cost of living increase bonus payment, and this amount shall be added in equal installments to the next year's payments.

(2) Each cost of living increase bonus payment shall be calculated by multiplying the total amounts payable in the previous year by five percent (5%).

Apparently, Mr. Archer increased his alimony obligation in 1985, but not thereafter. He contends that Ms. Archer's claim is barred by the equitable defense of laches. Laches is based on the doctrine of equitable estoppel and is only applied where the party invoking it has been prejudiced by the delay. Freeman v. Martin Robowash, Inc., 457 S.W.2d 606, 611 (Tenn.Ct.App.197...

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