Benedict v. Benedict
| Decision Date | 27 May 2014 |
| Docket Number | No. E2013-00978-COA-R3-CV,E2013-00978-COA-R3-CV |
| Court | Tennessee Court of Appeals |
| Parties | DONALD LESTER BENEDICT v. GRETCHEN MICHELLE BENEDICT |
Appeal from the Chancery Court for Hamilton County
W. Frank Brown, III, Chancellor
This appeal concerns numerous post-divorce issues. Donald Lester Benedict ("Husband") filed a petition to modify his child support obligation against his former wife Gretchen Michelle Benedict ("Wife") in the Chancery Court for Hamilton County ("the Trial Court").1 The parties eventually raised a host of issues about money, which were referred to a Special Master. Wife objected to certain of the Master's findings. Ultimately, the Trial Court sustained certain of Wife's objections to the Master's report and denied others. The Trial Court found, inter alia, that Husband was willfully or voluntarily underemployed. Husband appeals, and both parties raise several issues. We reverse the Trial Court as to its finding that Husband is willfully or voluntarily underemployed and those issues related to this finding. We remand for the Trial Court to make new determinations on these issues in light of our holdings that Husband was not willfully or voluntarily underemployed, and that Husband's income for purposes of child support is $75,000 per year as found by the Master. Otherwise, we affirm the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed,
in Part, and, Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.
Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Donald Lester Benedict.
Grace E. Daniell, Chattanooga, Tennessee, for the appellee, Gretchen Michelle Benedict.
OPINIONBackground
Husband and Wife divorced in September 2000. Two children ("the Children") were born from the marriage. The MDA and divorce judgment contained many obligations for Husband to Wife, among them: 1) child support of $3,200 per month effective June 1, 2000; 2) health and dental insurance for the Children; 3) private education for the Children; 4) funds for the Children to attend college; 5) rehabilitative alimony of $3,400 per month from August 1, 2000 through August 1, 2005; 6) indemnify Wife on debt to Pioneer Bank; and, 7) make payments for a 1999 Mercedes-Benz. Wife was awarded the marital residence. Their divorce notwithstanding, the parties resumed living together in June 2002. Wife and the Children moved in with Husband at his home. In 2003, Husband, Wife, and the Children moved into Wife's home at Shadow Walk Drive in Chattanooga, Tennessee. Also in 2003, Husband filed for bankruptcy. The parties stopped living together in July 2006.
In January 2007, Husband filed a petition to modify child support. Husband alleged that his income had decreased substantially and that Wife now was working. Wife filed an answer and counterclaim alleging that Husband had unclean hands and had failed to pay child support and alimony as ordered. Wife acknowledged that the parties had resumed living together for a while and that she was working. In November 2007, the Trial Court cut Husband's child support obligation from $3,200 per month to $1,900 per month pending trial. For his part, Husband denied being behind on child support or alimony. In May 2008, Wife filed a petition for contempt alleging that Husband failed to pay fees for one of the Children to attend school. Husband filed a response, alleging a reduction in income and asking for removal of his responsibility to pay tuition.
In April 2009, the Trial Court entered an order referring numerous issues in the case to a Master. The Master heard the case on several dates in 2010. We will not recount herein the whole breadth of testimony in this immensely litigious case, but confine ourselves to that relevant for review. The Master heard evidence about the parties' history and financial circumstances. Husband's income in 2000 was $350,000 per year. Husband at that time worked for Adams Lithography. Husband's work was commission-based. In 2002, Husband lost his job at Adams when the major client left Adams. Between 2002 and 2009, Husband worked in a variety of jobs. Husband opened Five-0-5 Marketing, LLC, an advertising agency, and Fireball Business Services, a printing company. The businesses ultimately did not thrive. Husband's income was as follows: 2005-$102,943, 2006-$205,143, 2007-$2,188, 2008-$24,954. By 2009, Husband returned to Adams and earned $75,000 per year. As of 2009, Wife was earning around $17,000 per year.
In March 2011, the Master entered his order. Husband's child support was set at $1,259 per year based on his salary at Adams of $75,000 per year. The Master ruled that Husband's obligation for private school tuition, college tuition, the second mortgage, and lease payments and residuals on the Mercedes were discharged in bankruptcy.
In January 2013, the Trial Court entered its memorandum opinion and order resolving Wife's objections to the Master's findings. The Trial Court held that the Master erred in calculating Husband's income and that Husband was willfully or voluntarily underemployed. The Trial Court held, inter alia: 1) Husband's income was his actual $75,000 salary at Adams plus an imputed $144,362 for a total of $219,362; 2) there was no substantial and material change in circumstances to modify Husband's private school tuition obligation; 3) Husband owed Wife $33,853.98 for tuition; 4) the college tuition obligation was discharged by Husband's bankruptcy; 5) the private school tuition obligation was not discharged in bankruptcy; 6) the debt on the second mortgage to Pioneer Bank was not discharged in bankruptcy; 7) although Husband's payment for the Mercedes-Benz was not discharged in bankruptcy, he satisfied his obligations under the MDA by providing Wife with a Ford Windstar van; 8) Husband owed child support arrearage of $7,548.92; 9) Husband owed medical expenses of $7,932.67; and, 10) Husband owed $44,150.64 for the second mortgage.
Wife filed an application for attorney's fees in the amount of $71,186.50. In March 2013, the Trial Court awarded Wife $44,568 in attorney's fees. Husband appealed to this Court.
Discussion
Although not stated exactly as such, Husband raises five issues on appeal: 1) whether the Trial Court erred in finding that Husband was willfully or voluntarily underemployed so as to impute to him an income to create a child support obligation of $2,045 per month retroactive to February 2007; 2) whether the Trial Court erred in its modification of Husband's child support and award of child support arrearage; 3) whether the Trial Court erred in finding that Husband was not entitled to a modification of his obligation to pay for private school tuition and an arrearage for private school tuition; 4) whether the Trial Court erred in finding that Husband's obligation for payment of the second mortgage was not a debt discharged in bankruptcy; and, 5) whether the Trial Court abused its discretion in awarding Wife $44,568 in attorney's fees. Wife raises four issues of her own: 1) whether the Trial Court erred in finding that Wife waived her right to receive alimony during the period the parties resumed living together and in its calculation of alimony arrearage; 2) whether the Trial Court erred in finding that Husband was not in contempt; 3) whether the Trial Court erred in finding that Husband's obligation for collegetuition for the Children was not a domestic support obligation under 11 U.S.C. 523 (a)(5); and, 4) whether the Trial Court erred in finding that Husband was not required to pay any additional amount for the Mercedes. Wife also argues that the Trial Court erred in the amount owed to her on the second mortgage debt, an argument we will address when we address Husband's issue of the second mortgage.
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). However, as to the concurrent finding of a chancellor and master, our standard of review is quite narrow as discussed in In re Estate of Ladd:
Where there has been a concurrent finding of the Special Master and Chancellor, this Court may not disturb the concurrent findings. Tenn. Code Ann. § 27-1-113. A concurrent finding of a master and chancellor 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.; Tenn. R. App. P. 13(d).
In re Estate of Ladd, 247 S.W.3d 628, 636-37 (Tenn. Ct. App. 2007).
The Trial Court's discretion is implicated for some of the issues on appeal. In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010), the Supreme Court discussed the abuse of discretion standard at length, stating:
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