Cela v. Cela

Decision Date30 July 2021
Docket NumberM2019-01861-COA-R3-CV
PartiesANGELA MICHELLE CELA v. SOKOL CELA
CourtCourt of Appeals of Tennessee

Session January 28, 2021

Appeal from the Circuit Court for Montgomery County No CC-16-CV-1070 Kathryn Wall Olita, Judge

In this divorce case, the wife appeals the trial court's calculation of her portion of the husband's military retirement and valuation of her speech therapy practice, as well as the overall division of marital assets. As appellee the husband raises a number of issues, all of which are without merit. We vacate the portion of the trial court's judgment addressing the husband's military retirement and remand for recalculation of the wife's share in the same. We affirm the trial court's judgment in all other respects.

Tenn R. App. P. 3 Appeal As of Right; Judgment of the Circuit Court Vacated in Part; Affirmed in Part; Case Remanded

Roger A. Maness and Katie Klinghard, Clarksville, Tennessee, for the appellant, Angela Michelle Cela.

Mark R. Olson, Clarksville, Tennessee, for the appellee, Sokol Cela.

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

OPINION

KRISTI M. DAVIS, JUDGE

I. Factual and Procedural Background

Angela Michelle Cela ("Wife") and Sokol Cela ("Husband") were married on March 9, 2002. Wife and Husband share a son and a daughter, both of whom were minors at the time of trial. The family's primary residence was located at Trieste Trail in Adams, Tennessee (the "marital residence"), just east of Clarksville, Tennessee.

Husband served in the Marine Corps from September 9, 1997 until January 31, 2003. After a two-month hiatus, he joined the United States Army on April 1, 2003. The family moved to Clarksville in 2004 when Fort Campbell, Kentucky, became Husband's duty station. While at Fort Campbell, Husband was deployed abroad three times. In 2013, Husband began the Army's experimental test pilot school in Huntsville, Alabama. He spent 2014 in Maryland until he completed the program in December of that year. Husband then returned to Huntsville on assignment as a test pilot. He retired from the Army on August 8, 2018, and soon thereafter began working as a commercial pilot.

Wife stayed home with the children early in the marriage but returned to school in 2004 to pursue speech pathology training after it became clear that the couple's son had a learning disability. She received a bachelor's degree in 2007 and a master's degree in 2009, both from Tennessee State University. After working as a speech pathology therapist in Clarksville for about three years, Wife opened her own speech therapy practice, More Than Words, as a sole-member LLC in November 2012. The company's name was later changed to Mark Their Words ("MTW") following a trademark dispute.

On May 27, 2016, Wife filed a Complaint for Absolute Divorce in the Circuit Court for Montgomery County (the "trial court"), alleging as grounds irreconcilable differences or, in the alternative, Husband's inappropriate marital conduct. Husband filed an Answer and Counter Complaint for Absolute Divorce, and the trial court appointed a guardian ad litem to represent the children's interests. For the next three years, the parties filed a plethora of motions, which we need not reference for resolution of the issues presented in this appeal. We, however, discuss below some of orders entered by the trial court to provide context on the nature of pretrial litigation in this case. We also note that the parties unsuccessfully engaged in mediation three separate times throughout the course of proceedings in the trial court.

On July 29, 2016, the trial court adopted Husband's proposed temporary parenting plan, with some exceptions, and ordered the parties not to discuss the case with their children or make derogatory remarks about the other parent. In September 2016, the trial court entered an order mandating Wife to pay $1, 303 per month in child support and $550 per month in spousal support. In November 2016, the trial court granted, in part, Husband's motions for civil contempt and for a restraining order, directing Wife to immediately pay $700 owed in spousal support and to provide complete responses to discovery requests and ordering the parties not to expose the children to paramours or to persons that would give the children "parental/life advice." In April 2017, the trial court granted Husband's motion for civil contempt and sanctions for Wife's failure to abide by the November 2016 order mandating complete discovery responses. The April 2017 order required Husband to provide Wife "written notice of any changes in his visitation schedule within (10) days' of the dates of the anticipated make up time." In June 2017, the parties submitted, and the trial court entered, an agreed order providing for the immediate listing for sale of the marital residence. The property, however, was not sold, and in June 2018, the trial court entered an order granting Husband exclusive use of the home.

In January 2019, the guardian ad litem moved the trial court to set specific visitation for the children after they were left unaccompanied at a restaurant for a scheduled exchange between the parties during the 2018 Christmas break. On February 8, 2019, the trial court ordered Husband to provide Wife with his monthly flight schedule upon release by his employer; Wife to provide Husband with a monthly schedule of school and extracurricular activities; and for exchange between parents to occur at a designated restaurant. That same day, the trial court entered another order setting trial of the case for May 14 and 15, 2019.

On May 10, 2019, the trial court held a pretrial conference and set the hearing on Husband's motion for civil and criminal contempt for May 14, 2019. The day before trial, the trial court entered an order bifurcating the issues to be tried: divorce and parenting issues, including child support and contempt, would be tried on May 14, 2019; issues related to spousal support and marital property, including valuation of MTW would be tried on June 26, 2019.[1]

On the first day of trial, May 14, 2019, Wife testified on her own behalf and offered the testimony of Rob Clouser. Mr. Clouser, MTW's bookkeeper since its inception, stated that the company's income is reported under Schedule C of Wife and Husband's joint tax return. Wife testified that while obtaining her degrees in speech pathology from Tennessee State University, the children would often be in the care of Husband in Clarksville. After completing her master's degree in 2009, she worked as a therapist for the Clarksville school system and in private practice. Wife stated that she and Husband separated in May 2016. Concerning her failure to meet her child support obligations, Wife testified that her income had declined, in part, because MTW had lost twelve therapists over the previous year.

On May 15, 2019, Ms. Griskey, MTW's receptionist and Wife's personal assistant since January 2017, testified that they first met when her son received speech and feeding therapy at MTW. Ms. Griskey cleans Wife's home, does her laundry, and helps take care of the children, including transporting them to and from school and medical appointments when Wife is working or incapacitated by lupus.

Husband also testified. He stated that after completing test pilot school in Maryland in December 2014, he moved back to Huntsville, Alabama. Husband explained that by then, MTW had grown significantly and Wife was no longer willing to move to Huntsville as they had planned. To minimize expenses, he lived out of his camper in Huntsville and went home to Clarksville on Thursday nights until Monday mornings for a period of time. He confirmed that he and Wife separated in May 2016, when he stopped coming home. Husband explained that he decided to retire from the military and turned down offers to be a test pilot in order to move to Clarksville and be closer to the children. On May 15, 2019, the trial court entered an order declaring the parties divorced.

On June 26, 2019, trial resumed, and Wife offered the expert testimony of Michael Wallace concerning the value of MTW. Mr. Wallace, who has been an accountant for twenty-five years, is accredited in business valuation and has been an expert witness on the subject in other divorce cases. He said that Wife is considered a sole proprietor for tax purposes because MTW is a sole-member LLC and all services provided by MTW staff are billed to insurance companies through Wife's social security number. Mr. Wallace indicated that he determined the "income approach" would not be a proper valuation method for MTW because it considers "overall enterprise value," and "[e]nterprise value and personal goodwill is not to be considered in a divorce in Tennessee for a sole proprietor and professional services." Enterprise goodwill, Mr. Wallace explained, refers to the customers' propensity to return to a business because of the elements that belong to the enterprise. Personal goodwill, on the other hand, means customers return to a business because of an individual. He asserted that MTW's business is made up of Wife's personal goodwill but stated that he was "not saying it's 100 percent personal goodwill." According to Mr. Wallace, Tennessee courts have held that personal professional goodwill is not a marital asset. Consequently, he used the "net asset approach" to value MTW at $82, 000 as of May 31, 2019. Mr. Wallace acknowledged that he did not factor Wife's income into determining MTW's value, notwithstanding her draws as a proprietor of more than $600, 000 between January 2018 and March 2019.

Husband called Joshua Hedrick as his expert witness. Mr. Hedrick is a financial...

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