Beck v. Beck

• Court: Tennessee Court of Appeals
• Writing for the Court: J. STEVEN STAFFORD.
• Decision Date: 11 May 2012
• Docket Number: No. W2011-01806-COA-R3-CV,W2011-01806-COA-R3-CV
• Citation: Beck v. Beck, No. W2011-01806-COA-R3-CV (Tenn. App. May 11, 2012)
• Parties: JEAN ANN FIORAZO BECK v. JAMES MARTIN BECK

JEAN ANN FIORAZO BECK

v.JAMES MARTIN BECK

No. W2011-01806-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

April 18, 2012 Heard at Memphis

Filed May 11, 2012

Direct Appeal from the Circuit Court for Shelby County

No. CT-004891-04 Gina C. Higgins, Judge

This is a post-divorce action, concerning the Appellant Husband's obligation to pay alimony in futuro to Appellee Wife. Husband and Wife entered into a marital dissolution agreement ("MDA"), which was incorporated and made part of the final decree of divorce. The MDA provided that both parties would exchange tax returns each year and that, if these returns were not proferred, then alimony would be suspended until they were. Wife provided her tax returns after redacting her personal information. Husband concluded that the redaction was a breach of contract and, without prior court approval, unilaterally stopped making alimony payments. Because the MDA provision for alimony in futuro lost its contractual nature upon being incorporated into the trial court's order, and because Husband failed to obtain court approval before he suspended payments, we conclude that he lacked authority to stop those payments. Therefore, the award of arrears was proper. Affirmed and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

Kevin A. Snider, Germantown, Tennessee, for the appellant, James Martin Beck.

Justin K. Thomas, Memphis, Tennessee, for the appellee, Jean Ann Fiorazo Beck.

OPINION

After twenty-six years of marriage, Appellee Jean Ann Fiorazo Beck filed a complaint for absolute divorce against Appellant James Martin Beck. Therein, Ms. Beck alleged, inter alia, that, "[t]hroughout the course of the parties' marriage, Husband had been abusive to Wife, physically, verbally, and emotionally." Following the filing of the complaint fordivorce, the parties engaged in approximately three years of contentious litigation before they were divorced by final decree, entered on March 5, 2008. Prior to the entry of the divorce decree, the parties were able to agree on a Marital Dissolution Agreement ("MDA"), which was incorporated into the final decree of divorce. As is relevant to the instant appeal, the MDA provides, at Paragraph 1, that:

Alimony. The Husband shall pay alimony in futuro, which shall be modifiable by the Court, taxable to Wife, and tax-deductible to Husband. The alimony shall cease upon Wife's death, remarriage, or cohabitation with anyone other than her son, or upon Husband's turning 65 years old. Husband shall pay $2,600.00 per month beginning on September 1, 2007 through the month of closing or six month, whichever occurs first. The $2,600.00 shall be payable as follows: Husband shall pay the mortgage, MLGW bill, association fee, car note, and car insurance directly to each creditor and shall pay $270.00 directly to Wife. Wife shall be responsible for payment of all of her other bills and shall hold Husband harmless and indemnify him on these debts. Husband shall pay Wife $2,000.00 per month beginning the month following the last $2,600.00 payment.

At least one-half of the monthly support payments to Wife shall be paid on or before the first day of each month beginning September 1, 2007, and the remaining amount shall be paid by the 15th of each month by direct deposit. Wife shall provide Husband with deposit slips. Both parties shall provide the other party a copy of their tax return, including W-2's and supporting documents, by April 30 of each year. Provided Husband's gross income exceeds $80,000.00 per year, the following calculation shall apply: If the sum of Wife's gross income and alimony received exceeds the Husband's gross income minus alimony paid, this shall constitute a material change of circumstances and the Court shall reduce the alimony obligation to the extent that each party shall have the same amount of income including alimony payments. If Wife fails to produce her return, alimony payments shall be suspended until production.

More than two years after the divorce, on May 14, 2010, Mr. Beck filed a motion titled "Motion to Clarify." In his motion, Mr. Beck asks for clarification of Paragraph 1 of the MDA, supra. Specifically, Mr. Beck avers, in relevant part, that:

3. . . . [Mr. Beck] has had repeated and continuous problems with Wife producing her tax returns. In particular, the Wife has refused and/or otherwise failed to timely provide her tax return for the year of 2008 and when produced it was a "Tax Return Transcript" and not a true and correct copy of the signed tax return. In addition, for 2008, the Wife produced an unsigned copy of what appears to be her 2009 Form 1040 in which the Wife has unilaterally redacted her social security number (for which [Mr. Beck] does not have an issue with [sic]), her bank account information, her occupation, and employer and employment information from the attached W-2.

4. [Mr. Beck] would aver that the production of these two items (i.e., the 2008 Tax Return Transcript and the unilaterally redacted 2009 Tax Return— assuming that both of these documents are accurate, true and correct) are not in compliance with the requirements of the Marital Dissolution Agreement and/or [are] certainly not within the spirit and intent of the requirements of disclosure so that [Mr. Beck] can verify the accuracy of the tax returns and/or be provided a true and correct signed copy (which could greatly impact his alimony payment.).

It is undisputed that the motion to clarify was not served on Ms. Beck by private process or by certified mail. Rather, it was simply mailed to Ms. Beck's last known address. Ms. Beck contends that she did not receive notice of this motion or of the May 28, 2010 hearing scheduled as a result of the motion. Consequently, she failed to appear at the hearing on the motion to clarify. On June 30, 2010, the trial court granted Mr. Beck's motion, specifically ordering that copies of the tax returns "shall be provided to the other party in an unredacted form and any previously redacted returns, including W-2s and supporting documents, shall be provided to the other party in an unredacted form within sixty (60) days of the entry of this Order." However, we note that the June 30th order does not go so far as to order a suspension of alimony at that time.

On September 16, 2010, Mr. Beck petitioned the court for a finding of civil contempt against Ms. Beck. He stated that, although his attorney had sent a demand letter "addressed to [Ms. Beck], [she] had not yet produced her 2008 Federal and/or state Income Tax Return in a timely manner. . . ." Based upon this allegation, Mr. Beck informed the court that he had "suspended all alimony payments to [Ms. Beck] during the periods that she has refused and/or otherwise failed to produce her 2008 Federal Tax return along with supporting documentation." On March 24, 2011, Ms. Beck filed a response to the petition for civilcontempt. Therein, she alleged that she "ha[d] produced her 2008 and 2009 tax transcripts, which show her exact income for those years," and that "Mr. Beck [has] simply refus[ed] to pay. . . alimony." Ms. Beck further responded that "Mr. Beck was an abusive Husband," and that Ms. Beck "is in a witness protection type program for domestic violence victims in an undisclosed location." Consequently, Ms. Beck averred that Mr. Beck was seeking unredacted tax returns "so that he c[ould] find Ms. Beck." Concurrent with her response, Ms. Beck filed a counter-petition for civil contempt against Mr. Beck, alleging that Mr. Beck was "currently delinquent in his alimony payments in the approximate amount of $9,000.00." Also on March 24, 2011, Ms. Beck moved the court, under Tennessee Rule of Civil Procedure 60.02, to set aside the June 3, 2010 order granting Mr. Beck's motion to clarify Paragraph 1 of the MDA. In support of her motion, Ms. Beck asserted that she had not received service on the motion, and that she had received no notice of the hearing. Mr. Beck opposed all of Ms. Beck's motions.

All pending motions were heard on April 8, 2011. On July 19, 2011, the trial court entered its order, granting Ms. Beck's motion to set aside the order clarifying the MDA, denying Mr. Beck's motion for civil contempt, and granting, in part, Ms. Beck's counter-petition for civil contempt against Mr. Beck. The court further determined that Mr. Beck was in arrears on his alimony payments in the amount of $34,997.25. This amount was reduced to judgment as follows:

4. . . . Mr. Beck shall pay Ms. Beck $10,000.00 on or before August 12, 2011. With respect to the remaining arrearages still owed after application of the $10,000.00 payment, ($24,997.00), Mr. Beck shall pay $1,000 per month towards those arrearages beginning in July 2011 with the first payment due on or before July 30, 2011. This payment shall be in addition to the $2,000.00 per month in alimony that Mr. Beck is required to pay Ms. Beck pursuant to the parties' divorce.

5. The total amount due Ms. Beck each month ($2,000 alimony + $1,000.00 arrearage) shall be paid to Ms. Beck in equal installments of $1,500.00 on the 15th and 30th of each month until it is paid in full.

The trial court's order goes on to state that, "[f]rom this point forward, the parties shall exchange tax returns and W-2's each year and Ms. Beck shall be allowed to redact her personal address and telephone number from the tax return produced to Mr. Beck."

Mr. Beck filed a timely notice of appeal. However, upon initial review of the record,this Court determined that the July 19, 2011 order was not final and appealable as it specifically reserved the issue of Ms. Beck's attorney fees. Upon order of this Court, on November 16, 2011, the trial court filed an order clarifying its July 19, 2011 order, and specifically denied Ms. Beck her attorney's fees. It appears that the order is now...