Cunningham v. Cunningham, No. M2002-01659-COA-R3-CV (Tenn. App. 12/22/2003)
| Decision Date | 22 December 2003 |
| Docket Number | No. M2002-01659-COA-R3-CV.,M2002-01659-COA-R3-CV. |
| Parties | ALAN REECE CUNNINGHAM v. SYLVIA DELAIN CUNNINGHAM. |
| Court | Tennessee Court of Appeals |
Appeal from the General Sessions Court for Putnam County; No. 169D01; Nolan R. Goolsby, Judge.
Affirmed as Modified and Remanded.
Rankin P. Bennett, Cookeville, Tennessee, for the Sylvia Delain Cunningham.
Henry D. Fincher, Cookeville, Tennessee, for the appellee, Alan Reece Cunningham.
Patricia J. Cottrell, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and William B. Cain, J., joined.
The case involves the dissolution of a marriage of seven years. The trial court granted the divorce to the wife, divided the marital property between the parties in roughly equal proportions, found that the wife was not economically disadvantaged, and declined to award her any form of alimony. The wife appeals the court's alimony decision. We find the wife is entitled to alimony because, contrary to the trial court's finding, we believe the evidence shows that she is economically disadvantaged when compared to her former spouse. We modify the judgment to award her alimony in solido.
Alan Reece Cunningham and Sylvia Holman first met at the Lowe's store in Cookeville where Mr. Cunningham was employed. At the time, Ms. Holman was taking courses in Computer-Aided Design (CAD) at Tennessee Tech, and working as an intern with a contractor that did business with Lowe's. She was also working part-time. The parties married on May 26, 1995. This was the second marriage for the husband, and the third for the wife. At the time of the divorce, Mr. Cunningham was 42 years old, and Ms. Cunningham was 41.
The parties testified that the first year or so of their marriage was good. They built a home on land that Reece Cunningham's father had given him, with Sylvia Cunningham doing much of the design work, as well as helping with some of the carpentry and painting. Ms. Cunningham quit her job at an architectural firm, and started her own home-based CAD business. The couple built and sold two "spec" houses for modest profits and also renovated a house to use as rental property.
The relationship between the parties and the marriage deteriorated after the first year of marriage due in large part to health problems suffered by Ms. Cunningham and the effect her condition had on her. Ms. Cunningham's pre-existing neck and back problems painfully flared up, she was diagnosed with degenerative disc disease, and she underwent at least three spinal surgeries. The result was constant pain, a debilitating reliance on pain medication, and an inability to perform many everyday tasks. On September 30, 1997, the Social Security Administration ruled that Ms. Cunningham was totally disabled, and began sending her a monthly check (which amounted to $584 at the time of trial).
Meanwhile, Reece Cunningham had been able to transfer to a sales job in the Contractors Yard at Lowe's, and began earning a substantial annual income from commission-based compensation. He also did his own contracting on the side.
Not surprisingly, Sylvia Cunningham's physical problems created great strains for the marriage. Her inability to perform normal chores and activities separated the couple from other people and from each other. They stopped many activities they used to enjoy with others and withdrew from social interaction. Several witnesses testified that both parties, previously outgoing and friendly, had become withdrawn and depressed. Many stresses developed between the two of them as their daily lives together deteriorated, and they became more isolated from each other even when home together. Mr. Cunningham left the marital home in mid-August of 2001.
On October 4, 2001, Mr. Cunningham filed a Complaint for Divorce in the General Sessions Court for Putnam County. The grounds were irreconcilable differences under Tenn. Code Ann. § 36-4-101(14), or in the alternative, inappropriate marital conduct under Tenn. Code Ann. § 35-4-101(11). He asked the court to make an equitable division of the marital property and debt, in the event the parties were unable to reach agreement on their own.
Ms. Cunningham filed her Answer and Counter-Complaint for Divorce on October 12, 2001. She asserted the same statutory grounds for divorce as did Mr. Cunningham. In addition to a division of marital property, she asked the trial court to award her temporary and permanent support, including alimony in solido and alimony in futuro. She also asked for reasonable attorney fees, discretionary costs, and court costs.1
The final hearing on the divorce was conducted on May 15, 2002. In addition to the parties themselves, thirteen other witnesses testified. In its final order, the trial court made extensive findings of fact, which are afforded a presumption of correctness, unless the evidence preponderates against them. Tenn. R. App. 13(d). Much of the testimony at trial focused on the relative fault of each party for the breakup of the marriage. In particular, Ms. Cunningham spent time at trial and money for investigators on the relationship between Mr. Cunningham and another woman, Ms. Madewell. The trial court granted the divorce to Ms. Cunningham, and explained his reasons as follows:
The Court finds that both parties are guilty of inappropriate marital conduct towards the other during the marriage. The proof shows that by August 2001 that neither party was completely satisfied with their marriage and that there was little hope for reconciling the existing problems. The defendant has attempted to prove that there was an improper romantic relationship existing between the plaintiff and Ms. Madewell before the date of physical separation. This allegation has not been proven. However, there is an abundance of evidence that the plaintiff and Ms. Madewell became romantically involved shortly after the Plaintiff separated from his wife. Such relationship constitutes the grounds of cruel and inhuman treatment or conduct towards the Defendant as renders cohabitation unsafe and improper pursuant to Tennessee Code Annotated Section 36-4-101(12).
The Court also finds by a preponderance of the evidence in balancing the relative fault between the parties that the fault of the Defendant is less than the fault of the Plaintiff. Therefore, the Court hereby grants a divorce to the Defendant as provided by Tennessee Code Annotated Section 36-4-129.
The trial court recounted much of the testimony on the issues surrounding the breakdown of the marriage, including Ms. Cunningham's health problems and the impact those problems had on the couple, as well as the proof surrounding the husband's relationship with Ms. Madewell. In addition, the court made a number of specific findings of fact supporting its ultimate conclusion. Neither party contests the award of the divorce to Ms. Cunningham, and neither contests the court's findings supporting its conclusion. Thus, we are not called upon to review this holding and its underpinnings. Fault is only relevant herein to the extent it is a factor to be considered in determining a request for spousal support.
The testimony as to the parties' property and their finances was relatively straightforward. The trial court first awarded each party his or her separate property and then proceeded to identify, value, and distribute the marital property, relying to large extent on the parties' identification and valuation of the property.2 Once again, the trial court made extensive and specific findings of fact regarding the division of marital property, including the following:
The Court finds that neither party had any substantial estate before their marriage. The parties have accumulated significant assets during the marriage but have likewise accumulated a large amount of debt. The proof shows that the Defendant began to experience medical problems related to her back and neck within the first year of the marriage. The proof also shows that she contributed very little income to the family needs during the first two and one-half years of the marriage. This was due first to her being a full-time student in vocational school at the beginning of the marriage and then due to her subsequent medical problems. . . .
The parties have acquired some residential rental property during the marriage but the exhibited tax returns do not reflect significant net income. The Court further finds from the evidence that the Plaintiff through his employment with Lowe's has basically been the primary provider of all the financial resources to meet the needs of the parties during the marriage. The Defendant however kept the family checkbook and was in charge of managing the family budget but she would often overdraw the bank account.
The parties' present marital home was also built during the marriage. The land came to the parties by gift from the Plaintiff's parents. The Plaintiff acted as general contractor and the Defendant designed the house plans. Both parties performed much of the physical labor needed to build their home and the Cherry Creek Road spec house.
* * * *
Based upon the above findings, the Court finds that the marital estate totals the sum of $631,214.25. A fair and equitable division of marital property awards unto the Plaintiff [Mr. Cunningham] the sum of $382,846.11 made up of the marital home valued at $242,500.00; personal property valued at $26,610.00; the State Farm Insurance policy valued at $700.00; plus one-half of the Lowe's retirement accounts totaling $113,036.11. The Plaintiff is ordered to pay marital debts totaling $245,461.23. Thus, the division of property being awarded to the Plaintiff is the sum of $137,378.88 which amounts to approximately 48% of the net marital estate.
The Court finds that a fair and equitable division of the...
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