Gergel v. Gergel
| Decision Date | 26 April 2022 |
| Docket Number | E2020-01534-COA-R3-CV |
| Parties | EDNA GERGEL v. JAMES GERGEL |
| Court | Tennessee Court of Appeals |
Session: November 30, 2021
Appeal from the Chancery Court for Anderson County No. 15CH7132 M Nichole Cantrell, Chancellor
In this divorce action, the husband appeals the trial court's distribution of the marital estate, denial of the husband's request for alimony in futuro, grant to the wife of sole decision-making authority over the parties' minor child, and grants to the wife of attorney's fees and discretionary costs. The husband, who received disability benefits for a prior mental health diagnosis, also appeals the trial court's finding that he was voluntarily unemployed and the court's denial of his motion to strike certain expert witness testimony. Having determined that an unspecified portion of the discretionary costs awarded to the wife for fees related to three expert witnesses, one vocational rehabilitation consultant and two psychiatrists, were not allowable under Tennessee Rule of Civil Procedure 54.04(2), we vacate the trial court's award of discretionary costs as to the fees for these three experts' work with the exception of $2, 070.00 in demonstrably allowable fees paid to the vocational consultant. We remand for a specific determination of the fees for these three experts allowable, if any, as an award of discretionary costs to the wife under Rule 54.04(2). We also modify the trial court's award of discretionary costs to the wife for court reporter fees to reduce them slightly pursuant to Rule 54.04(2). We otherwise affirm the trial court's judgment. We deny the wife's request for an award of attorney's fees on appeal.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part as Modified, Vacated in Part; Case Remanded
Mandy M. Hancock, Knoxville, Tennessee, for the appellant, James Gergel.
Donald Capparella and Kimberly Macdonald, Nashville, Tennessee, for the appellee, Edna Gergel.
OPINION
The plaintiff, Edna Gergel ("Wife"), and the defendant, James Gergel ("Husband"), were married in October 1997. The marriage produced one child, a daughter ("the Child"), who was thirteen years of age at the time of the divorce decree's entry. Both parties are highly educated. Wife holds a doctorate in biochemistry and molecular cell biology, and Husband holds two master's degrees, one in chemistry and one in the philosophy of biochemistry. The parties settled in Oak Ridge, Tennessee, in 2007 when both began working at the Oak Ridge National Laboratory ("ORNL"). At the time of the divorce decree's entry, Wife was employed in the Patents Department at ORNL, earning approximately $138, 000.00 per year. Husband had been employed as a Senior Technical Staff Member in the Computer Science and Mathematics Division at ORNL, earning approximately $80, 000.00, until 2011 when he applied for disability benefits due to mental health concerns. Husband was subsequently granted Social Security Disability benefits in April 2013 and also drew long-term disability benefits through ORNL. At the time of trial, Husband had a gross monthly income of $4, 235.60, or $50, 827.20 yearly. In addition, the Child received $893.00 monthly, paid to Wife, in Social Security benefits due to Husband's disability.
On April 28, 2015, Wife filed a complaint for divorce in the Anderson County Chancery Court ("trial court"), alleging as grounds irreconcilable differences or, in the alternative, inappropriate marital conduct. See Tenn. Code Ann. § 36-4-101(14), (11) (2021). Wife requested child support pendente lite and reasonable attorney's fees in the event that the parties were unable to reach an agreement. Wife vacated the marital residence, taking the Child with her, in May 2015, moving into the maternal grandmother's residence. Wife remained employed at ORNL.
Husband filed an answer and counter-complaint on June 16, 2015, requesting dismissal of Wife's complaint and a divorce on his alleged grounds of abandonment and cruel and inhuman treatment. See Tenn. Code Ann. § 36-4-101 (13), (11). He also alleged parental alienation and requested custody of the Child, child support, spousal support, an award of the marital residence and its contents, and attorney's fees for defending against the complaint. Wife filed an answer to the counter-complaint on July 9, 2015, denying all substantive allegations. The complaint, counter-complaint, and contemporaneous motions filed respectively by the parties indicate that each party filed a proposed parenting plan, although neither is in the appellate record as an attachment to a pleading. It is clear from the pleadings that Wife was requesting that Husband have zero days of co-parenting time due to his alleged "mental instability."
Records and expert opinions concerning Husband's mental state were at issue throughout the pendency of the divorce and at trial. In the April 2013 decision issued by the Social Security Administration, presented as an exhibit at trial in the instant action, Husband was granted disability benefits upon a finding, in part, that he had "1) [m]ajor depressive disorder, recurrent, moderate-to-severe with psychotic features, and 2) anxiety disorder." Upon a motion filed by Wife, the trial court entered an "Agreed Order for Release of Privileged Information" on August 17, 2015, directing that "[a]ll mental health and psychological [records] of [Husband] shall be made available to counsel for [Wife]." The trial court concomitantly entered an "Agreed Protective Order," directing that any records concerning the parties not be released for any use other than in the instant action.
On November 6, 2015, the trial court entered an agreed interim order, dismissing an ex parte order of protection that had been entered against Husband and entering instead a mutual temporary restraining order, as well as a temporary parenting plan. The temporary parenting plan granted to Husband co-parenting time on alternate Saturday and Sunday afternoons and Wednesday evenings, provided that the co-parenting occur "somewhere other than the marital home" and that the Child be fed and her homework completed before she was returned to Wife. This order was subsequently "restated" in December 2015. A mediator's report was filed on November 30, 2015, indicating that no issues were resolved.
Upon Husband's motion and in an agreed order entered on June 7, 2016, the trial court, inter alia, appointed attorney Kelly Wojciechowski as a guardian ad litem ("GAL") to represent the Child's best interest. The court subsequently entered an order setting forth the parties' agreement concerning the GAL's access to the Child, other individuals, and information she would need to represent the Child, as well as the parties' agreement that they would equally split the GAL's fees. On May 2, 2017, Husband filed a motion to expand his co-parenting time. Wife filed a response objecting to Husband's motion, alleging that Husband suffered from "severe mental illness," the symptoms of which included repeated suicidal attempts and threats; "delusional thinking, hearing voices, writing and verbalizing, including writing on the walls of the marital home such as 'chop it off'"; physical and verbal harassment of Wife; hoarding in the marital residence; "[i]nability to stay awake or to maintain a schedule"; and "[i]nability to control his impulses." Following a hearing conducted in May 2017, the trial court entered an order on August 28, 2017, denying Husband's motion for expanded co-parenting time.
In its June 2016 agreed order, the trial court had also appointed Dr. Susan Koller as Wife's "witness to conduct a forensic psychological evaluation of [Husband]." In a subsequent agreed order entered on June 19, 2017, the court released Dr. Koller and appointed Peter B. Young, Ph.D., as Wife's expert witness to conduct Husband's forensic psychological evaluation. Following submission of Dr. Young's psychological evaluation of Husband and Dr. Young's deposition, as well as the deposition of Michael A. Fisher, M.D., who was Husband's treating psychiatrist, the trial court conducted an in-chambers status conference on May 3, 2018. The court then entered an order on May 24, 2018, establishing supervised visitation for Husband with the Child at The Assurance Group. In this order, the court also provided that Husband could continue telephone and video contact with the Child and that he could attend school and public events at which the Child was in attendance. The court specifically precluded Husband from driving with the Child in the vehicle due to concerns for the Child's safety.
On November 28, 2018, Husband filed a motion in limine requesting that Dr. Young's deposition testimony and report be excluded. Husband averred that contrary to Dr Young's assertion during his deposition testimony, taken on December 12, 2017, that he had never had any complaints lodged against him, the Tennessee Board of Examiners in Psychology had entered a consent order on December 7, 2017, suspending Dr. Young's license, effective thirty days following entry of the order, due to two disciplinary complaints unrelated to this action. Husband attached a copy of the December 2017 consent order to his motion. Wife filed a reply, acknowledging that Dr. Young's testimony stating that he had not had disciplinary action taken against him had been "patently untrue" while arguing that Dr. Young's impaired credibility was irrelevant to his testimony and report in this case. Wife also filed a motion requesting that the court order Husband to...
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