Edmisten v. Edmisten
| Decision Date | 13 May 2003 |
| Docket Number | No. M2001-00081-COA-R3-CV.,M2001-00081-COA-R3-CV. |
| Parties | JEFFREY EARL EDMISTEN. v. KATHY HAMILTON EDMISTEN. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Williamson County No. II-25154, Chancellor, Russ Heldman.
Judgment of the Chancery Court Affirmed in Part, Reversed in Part, Modified and Remanded.
Penny Harrington, Nashville, Tennessee, for the appellant, Jeffrey Earl Edmisten.
Robert Todd Jackson, Nashville, Tennessee, for the appellee, Kathy Hamilton Edmisten.
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM C. KOCH, JR., J., joined.
Wife sought separate maintenance and support. After a two year separation during the pendency of Wife's petition, Husband sought a divorce on the statutory ground of the separation. Wife opposed the divorce. The trial court dismissed Husband's counter-complaint, awarded Wife a legal separation, divided the marital property, and awarded alimony in futuro to Wife. Husband appeals, challenging not only the trial court's decision not to award a divorce, but also the division of marital property and award of alimony to Wife. We affirm in part, reverse in part, and modify the trial court's order.
Kathy Hamilton Edmisten ("Wife") filed a complaint for separate support and maintenance on December 23, 1997, against Jeffrey Earl Edmisten ("Husband") in which she sought alimony pendente lite and permanent alimony, division of the marital property, continuation of her health insurance, and continuation of her status as beneficiary on Husband's life insurance. Wife alleged in her complaint that Husband committed inappropriate marital conduct and adultery.
Husband and Wife married in December of 1992 and ceased living together in late 1997. At the time of the trial Wife was 45 years old and Husband was 56.
Although the parties had no children during the marriage, Husband and Wife attempted invitro fertilization several times, beginning in 1994. After their last attempt in 1995, the marriage began to deteriorate. Although the parties disagree on precipitating events, it is clear that Wife's discovery of Husband's infidelities was a significant factor. According to Wife, she contracted several sexually transmitted diseases during the marriage and, when she confronted Husband about her conditions,1 he admitted to being unfaithful to her with three different women. The parties attempted marriage counseling, but that was not successful and Husband stopped attending his individual sessions.
Wife's dissatisfaction with Husband's misconduct and the condition of the marriage culminated with the filing of her complaint for support and separate maintenance. Husband filed an answer and counter-complaint for absolute divorce in which he denied adultery and stated that reconciliation was not possible. Husband sought a divorce on the grounds of irreconcilable differences, admitted that the marital property and debt should be equitably divided, and agreed that Wife was entitled to pendente lite support but denied her right to permanent support or to exclusive occupancy of the marital residence. Wife's answer to Husband's counter-complaint raised justification or provocation as an affirmative defense to irreconcilable differences pursuant to Tenn. Code Ann. § 36-4-120.
Almost two years after her complaint was filed, Wife filed a motion to set pendente lite support. She admitted that Husband had paid her voluntary spousal support in the amount of $1,500 per month since the separation in addition to her automobile expenses in the amount of $555 per month and car insurance in the amount of $150 per month since the separation, but that he had not made those payments in September of 1999.
The parties entered an agreed order on November 15, 1999, in which Husband agreed to pay pendente lite support to Wife in the amount of $1,900 per month, the payments on Wife's Infiniti vehicle, and the insurance premiums related to all of the vehicles utilized by Wife. Husband also agreed to maintain Wife as a secondary insured on his health insurance.
Husband was allowed to amend his counter-complaint to allege as grounds for absolute divorce the fact that the parties had been continuously separated for two years and that there were no minor children of the marriage. Wife answered the amended counter-complaint by admitting the two year separation and again alleging justification as an affirmative defense. She opposed a divorce.2
Prior to the final hearing on the complaint and counter-complaint, each party submitted a proposed division of marital assets in which they listed property as either marital or separate and suggested to the court the proper division of the marital property. They also submitted statements of expenses and income.
The trial court conducted a hearing but took the matter under advisement, due to the complexity of the issues involved and to the fact that one of the subpoenaed witnesses failed to appear. The trial court later found that witness, a former lover of Husband, in contempt of court. The trial court allowed the parties to examine and cross-examine her at a later hearing.
The trial court entered an order on December 1, 2000, in which the court ruled that due to the "unclean hands" of Husband "the Defendant's [Husband's] amended `counter-complaint for absolute divorce' must be and is dismissed with prejudice." Wife's complaint for separate maintenance was treated by the court as a complaint for legal separation under Tenn. Code Ann. § 36-4-102 and was granted. The court divided marital property, awarded alimony in futuro to Wife in the amount of $2,333.00 per month, ordered Husband to maintain Wife on his health insurance policy, ordered Husband to maintain life insurance for Wife's benefit in the amount of $250,000, and awarded alimony in solido to Wife in the amount of $11,000 for attorney's fees and private investigator fees.
Specifically, the trial court based its decision to dismiss Husband's counter-complaint with prejudice on Continental Bankers Life Ins. Co. v. Simmons, 561 S.W.2d 460, 465 (Tenn. Ct. App. 1977), stating:
The principle [of unclean hands] is general, and is one of the maxims of the court that he who comes into a Court of Equity asking its interposition in his behalf must come with clean hands; and if it appear from the case made by him, or by his adversary, that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he will be repelled at the threshold of the court.
Defendant [Husband], by his testimony and as a result of his pleadings, has "unclean hands." His conduct bears "an immediate relation to the subject-matter of the suit." Durr v. Buerger, 1999 WL 807701 (Tenn. Ct. App. 1999), at p.2. Therefore, Defendant's amended "counter complaint for absolute divorce" must be and is hereby dismissed with prejudice. Plaintiff's complaint for separate support and maintenance, which the court deems to be a complaint for legal separation under Tenn. Code Ann. 36-4-102 or which must be treated as one, is sustained by the evidence and is hereby granted.
Neither party has asked the Court to award her/him an absolute divorce on the ground of inappropriate marital conduct; however, upon consideration of all the evidence and the lack of credibility of Defendant, the Court finds that Defendant has committed what the law in the state of Tennessee defines as inappropriate marital conduct and his inappropriate marital conduct above was the cause or fault which caused the separation of the parties. Plaintiff, who was a very credible witness and most certainly an excellent wife, should not suffer as a victim of Defendant's misconduct to the extent that Tennessee law may be applied in her favor or come to her aid. Accordingly, Plaintiff is granted a legal separation from Defendant to be governed by T.C.A. § 36-4-102, and because of his unclean hands, Defendant shall not be permitted to seek a divorce from Plaintiff for any reason he may advance based upon any prior alleged conduct of Plaintiff.
The trial court's order concluded with a lengthy footnote that discussed the trial court's wide discretion in granting a divorce based upon the language in Tenn. Code Ann. § 36-4-129.
Husband appeals, taking issue with the trial court's failure to declare the parties divorced as well as the trial court's division of property and award of alimony and attorney's fees without making specific findings of fact.
On appeal, Husband argues that the trial court inappropriately admitted evidence regarding the Husband's adultery and inappropriate marital conduct after he filed an amended complaint for divorce alleging a two year separation as grounds and Wife admitted those grounds in her answer. Husband avers that the improperly admitted evidence led to the trial court's refusal to grant him a divorce based upon the separation and its reliance on the "unclean hands" of Husband as a means to that end.
This litigation began in December of 1997 when Wife filed a complaint seeking separate support and maintenance; she did not request a divorce. Before the court ruled on her complaint, Husband amended his pleadings to ask for an absolute divorce on an additional ground.3 The ground asserted by Husband was that "For a continuous period of two (2) or more years which commenced prior to or after April 18, 1985, both parties have lived in separate residences, have not cohabited as man and wife during such period, and there are no minor children of the parties." Tenn. Code Ann. § 36-4-101(15). Unlike most of the other statutory grounds for divorce, this ground is not based on fault or misconduct. Thomasson v. Thomasson, 755 S.W.2d 779, 788 (Tenn. 1988) (Harbison, J. concurring); Earls v. Earls, 42...
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