Atkins v. Motycka, No. M2007-02260-COA-R3-CV (Tenn. App. 11/6/2008)
| Decision Date | 06 November 2008 |
| Docket Number | No. M2007-02260-COA-R3-CV.,M2007-02260-COA-R3-CV. |
| Parties | MARY HENDON ATKINS v. GREGORY JOHN MOTYCKA |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County; No. 06D-85; Muriel Robinson, Judge.
Judgment of the Circuit Court Affirmed in Part, Vacated in Part, and Reversed in Part.
Marlene Eskind Moses and John D. Kitch, Nashville, Tennessee, for the appellant, Gregory John Motycka.
D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Mary Hendon Atkins.
Patricia J. Cottrell, P.J., M.S., not participating.
OPINION
In this divorce action, the husband appeals the trial court's award of alimony in solido, an upward deviation in child support, and the issuance of a permanent injunction against his mistress. The trial court awarded the wife alimony in solido in the amount of $360,000, which was satisfied with an assignment of the husband's equity in the marital residence. The trial court made an upward deviation in child support, requiring the husband to pay more than twice the presumptive amount. The trial court also made the husband's mistress an involuntary third party and issued a permanent injunction prohibiting her from having any contact with the wife or the parties' children. The husband contends the assignment of his equity in the marital residence as alimony in solido constituted an inequitable distribution in the martial property, the upward deviation in child support is not justified, and the trial court lacked jurisdiction to issue an injunction against his mistress. We affirm the award of alimony in solido. We reverse the upward deviation in child support because the record fails to establish specific facts that justify a deviation from the presumptive amount of child support. We vacate the permanent injunction issued against the husband's mistress because the injunction is void due to the fact the trial court did not have jurisdiction over her.
Mary Hendon Atkins filed for divorce from Gregory John Motycka on January 10, 2006, on the grounds of irreconcilable differences, inappropriate marital conduct, and adultery. The parties had been married since August 5, 1990, and have two children, twins, born on February 3, 1995.
Both parties are highly educated and they lived a lavish lifestyle during their marriage, notwithstanding the fact that neither of them earned a significant income. Ms. Atkins had a masters degree in social work, however, she only worked part-time during the marriage as a marriage counselor. She spent most of her time working in the home as a stay-at-home mother. Mr. Motycka had a bachelor's degree in music, however, he seldom worked. Over the course of the marriage, he earned less than $300 per month on average. The parties' lavish lifestyle was made possible by the generosity of Mr. Motycka's ancestors. He was the beneficiary of spendthrift trusts and he additionally received frequent and generous monetary gifts from his mother. Although the parties lived a very comfortable lifestyle as a consequence of gifts and trust distributions to Mr. Motycka, they did not acquire or retain any assets of significant value with the exception of the marital residence, which had equity of approximately $720,000 at the time of the divorce.
After eleven years of marriage, Mr. Motycka met his future mistress, Jennifer McGail Pitts. They soon began an affair, notwithstanding the fact that both were married. Their affair continued without incident for approximately four years until Mrs. Pitts' husband learned of the affair. Realizing that her marriage was in jeopardy, Mrs. Pitts insisted that Mr. Motycka immediately proceed to obtain a divorce from Ms. Atkins, as he had promised Mrs. Pitts, so that he could marry her. When that did not occur, Mrs. Pitts engaged in irrational behavior, which included calling Ms. Atkins up to forty times a day and threatening to go to the children's school to tell them of their father's affair. Mrs. Pitts also followed Mr. Motycka to work one day and hit him in the presence of others.
Despite Mrs. Pitts' behavior, the affair with Mr. Motycka continued. Moreover, Mr. Motycka continued to provide financial support for Mrs. Pitts, which included paying for her cell phone service, her children's cell phones, as well as her utilities and beauty salon expenses. Mr. Motycka also provided gifts for Mrs. Pitts' children, including a motorcycle for her son and a motor scooter for her daughter.
The case went to trial in August of 2007. Mr. Motycka and Ms. Atkins testified and Mrs. Pitts, who was not a party to the action, also testified. Immediately following Mrs. Pitts' testimony, the trial court sua sponte instructed Ms. Atkins' attorney to prepare an order making Mrs. Pitts a third-party defendant to the divorce action and permanently enjoining Mrs. Pitts from having any contact with Ms. Atkins.
In the Final Decree of Divorce, Ms. Atkins was granted a divorce on the grounds of Mr. Motycka's inappropriate marital conduct and adultery. The only marital asset of any value was the marital residence, the equity of which, approximately $720,000, the trial court divided equally. The trial court determined that Ms. Atkins was the economically disadvantaged spouse and awarded her alimony in solido in the amount of $360,000. The trial court determined the award of alimony in solido should be paid in one lump sum. To accomplish this, the court assigned Mr. Motycka's half interest in the equity in the marital residence to Ms. Atkins. In addition to alimony in solido, Ms. Atkins was awarded transitional alimony of $1,500 per month for a period of three years.1 As for child support, the trial court determined the presumptive amount pursuant to the Child Support Guidelines was $1,153 per month; however, the court determined that an upward deviation to $2,500 per month was necessary to maintain the children's lifestyle and to pay their summer camp fees. In the Final Decree of Divorce, the trial court permanently enjoined Mrs. Pitts "from contacting, threatening, harassing, verbally abusing or coming into the presence of [Ms. Atkins] or the minor children . . . at any place or any time whatsoever." This appeal by Mr. Motycka followed.
Mr. Motycka asserts that the trial court erred in (1) setting the amount of alimony in solido; (2) issuing injunctive relief against his mistress, Mrs. Pitts; and (3) setting child support based upon an upward deviation.
Mr. Motycka contends the $360,000 lump sum award of alimony in solido, which was satisfied by assigning Mr. Motycka's equity in the marital residence to Ms. Atkins, constitutes an inequitable division of the marital estate.2 His contention is premised on the erroneous assertion that Ms. Atkins was awarded marital property in the net amount of $752,217.40 and that he was awarded a net value of only $75,053.23. Contrary to Mr. Motycka's assertions, after deducting the assignment of the parties' marital obligations to the respective spouses, Ms. Atkins was awarded a net value of $387,891.40, inclusive of her share of the equity in the marital residence, and Mr. Motycka was awarded a net value of $289,272.77,3 inclusive of his share of the equity in the marital residence.
The purpose of alimony is to assist the disadvantaged spouse to become or remain self-sufficient. Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn. Ct. App.1980). When economic rehabilitation is not feasible, alimony may be awarded to mitigate the harsh economic realities of divorce. Id. Although divorced couples often lack sufficient assets or income to enable both of them to retain their pre-divorce standard of living, Brown v. Brown, 913 S.W.2d 163, 169-70 (Tenn. Ct. App. 1994), the economically advantaged spouse may be required to provide "closing in money" to assist the disadvantaged spouse in approaching his or her former financial condition. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995).
Tennessee recognizes four separate classifications of spousal support, alimony in futuro, alimony in solido, rehabilitative alimony, and transitional alimony. Tenn. Code Ann. § 36-5-121(d)(1) (2005). Depending on the circumstances of the case, the court may award one form of alimony or a combination of the separate classifications of alimony. Tenn. Code Ann. § 36-5-121(d)(1). Alimony in solido is a form of long term support, Tenn. Code Ann. 36-5-121(h)(1), that consists of a definite sum of money. Broadbent v. Broadbent, 211 S.W.3d 216, 222 (Tenn. 2006); Burlew v. Burlew, 40 S.W.3d. 465, 471 (Tenn. 2001). Alimony in solido may be awarded in a lump sum at the time of the final decree, or it may be awarded in the form of periodic payments for a given period of time. Broadbent, 211 S.W.3d at 222; Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999).
There are no hard and fast rules for alimony decisions. Manis v. Manis, 49 S.W.3d 295, 304 (Tenn. Ct. App. 2001); Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998); Crain v. Crain, 925 S.W.2d 232, 233 (Tenn. Ct. App. 1996). Alimony decisions require a careful consideration of the relevant factors in Tenn. Code Ann. § 36-5-121(i) and typically hinge on the unique facts and circumstances of the case. Oakes v. Oakes, 235 S.W3d 152,160 (Tenn. Ct. App. 2007); Anderton, 988 S.W.2d at 683; Crain, 925 S.W.2d at 233. Of the relevant factors to be considered when determining whether to award alimony, which are stated with specificity in Tenn. Code Ann. § 36-5-121(i), the two most important factors to be considered are the need of the economically disadvantaged spouse and the obligor spouse's ability to pay. Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct. App. 2007) (citing Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002); Bogan v. Bogan, 60 S.W.3d 721, 730 (Tenn. 2001); Sullivan v....
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