Hargrove v. Hargrove, No. W2007-00538-COA-R3-CV (Tenn. App. 11/28/2007)
| Decision Date | 28 November 2007 |
| Docket Number | No. W2007-00538-COA-R3-CV.,W2007-00538-COA-R3-CV. |
| Parties | WILLIAM EDWARD HARGROVE v. MERRIELLEN HARGROVE a/k/a MERRIELLEN WARSTLER. |
| Court | Tennessee Court of Appeals |
Merriellen Warstler, Stevenson, AL, Appellant, pro se
Terry J. Leonard, Camden, TN, for Appellee.
Alan E. Highers, P.J., W.S., delivered the opinion of the court, in which Holly M. Kirby, J., and Ben H. Cantrell, Sp.J., joined.
This is a post-divorce case involving disputes over obligations in the Marital Dissolution Agreement and modification of the visitation schedule contained in the permanent parenting plan. Husband filed for divorce from Wife, and on August 25, 1998, the chancery court entered a final decree of divorce that incorporated the Marital Dissolution Agreement. The permanent parenting plan was filed on February 12, 2004. Concerning Husband and Wife's minor son, born January 7, 1990, the residential schedule in the permanent parenting plan provided that Husband would be the primary residential parent and Wife would be responsible for the child every other weekend and during certain holidays. As to property division, the Marital Dissolution Agreement required Husband to transfer one-half of his pension plan to Wife. Concerning the marital home, Wife agreed to execute a quitclaim deed to Husband conveying her interest to Husband simultaneously with Husband paying her $15,000. After a contempt hearing, the court modified the parenting schedule; found that Wife was entitled to one-half of Husband's pension, but not one-half of Husband's annuity; and found that Husband had satisfied the $15,000 obligation. Wife appeals pro se, arguing that the modification of the residential schedule found in the parenting plan is void because the court did not follow Tenn. Code Ann. § 36-6-405(a). Wife also argues that the parties' intent was that she was to receive half the annuity along with half the pension. Finally, Wife contends that Husband did not meet his burden of proof to establish the defense of accord and satisfaction. We affirm.
The chancery court in Benton County, Tennessee, entered a final decree awarding William Edward Hargrove ("Husband" or "Appellee") an absolute divorce from Merriellen Elmore Hargrove, a/k/a Merriellen Elmore Warstler ("Wife" or "Appellant"), on August 25, 1998. In this final decree, the court approved, ratified, and incorporated the Marital Dissolution Agreement ("MDA") that the parties previously filed with the court on May 6, 1998. Per the MDA, Husband was to keep the marital home and 4.3 acres, and in exchange, he was to pay Wife $15,000: "Wife agrees to execute a quitclaim deed conveying her interest to said Husband simultaneously with her receiving $15, 000." As to the division of Husband's pension plan, Amended Exhibit III of the MDA reads that "the husband shall receive as his sole and absolute property one-half of his pension plan with Boilermaker-Blacksmith National Pension Trust . . . ."1 Amended Exhibit II listing Wife's awarded property provides that
The MDA also dealt with child custody and visitation, but the permanent parenting plan was filed later on February 12, 2004.2 The parenting plan named Husband as the primary residential parent. Wife received visitation with the child every other weekend. The permanent parenting plan also set out the parent and child holiday and vacation schedule. The parents were to alternate and divide the Christmas vacation period; for Thanksgiving, Husband kept the child in even numbered years and Wife in odd numbered years. Finally, the parenting plan mandated that neither the Husband nor the Wife make any negative statements about the other parent in front of the child.
Several years later, on September 25, 2006, Wife filed a motion to enforce the MDA obligations. Wife claimed that Husband had failed to pay her one-half of Husband's retirement funds; furthermore, Wife claimed that Husband had only paid her $11,000 of the $15,000 owed for the marital residence. Wife also filed a petition for contempt, alleging that Husband had violated the MDA in several respects, including making negative statements about Wife to the child. Husband filed a response to the petition for contempt on October 5, 2006, and also filed a counter motion. Responding to the allegation concerning the $15,000, Husband stated that "obviously she [Wife] would not have executed a Quitclaim Deed until or unless she got all of her monies." Husband also asserted the affirmative defense of accord and satisfaction, attaching a copy of the quitclaim deed to the motion.3 Wife then filed a motion to supplement her petition for contempt, to which Husband filed a response.
The court then took up the issues raised in Wife's petition for contempt and various subsequent motions filed by both parties in a hearing on November 6, 2006. At the motion hearing, Husband's counsel moved for an in camera hearing so the court could discuss the visitation situation with the then sixteen year old child. Based on this in camera hearing with the child, the judge stated in his order dated January 3, 2007, that the child "shall visit Merriellen Hargrove, a/k/a Merriellen Warstler, during Thanksgiving and Christmas Holidays and the remainder of the year shall be at the child's discretion." The court based this decision on the following:
[The child ] has a life of his own and he's involved in a lot of things that don't coincide well with traveling. He has assured me that if I leave it in his discretion that he will visit his mother, but he doesn't want to be made to go every other weekend . . . . He doesn't want to be a problem, and he doesn't want to have a problem. So I think that would be well if the adults would follow along in that and not have to place any additional pressure . . . . We will leave visitation in his discretion.
Also, the judge's order declared that Husband had fully satisfied the $15,000.00 constituting Wife's one-half interest in the marital home. As to the disputed retirement accounts, the judge found that Wife was entitled to "[t]he Boilermakers National Pention [sic] Trust and that a Qualified Domestic Relations Order shall be entered within 60 days"; however, Wife "is not entitled to the Boilermakers National Annuity Trust."
Appellant has timely filed her notice of appeal and presents the following three issues for review:
1. Whether the lower court erred in ordering the modification of the residential sharing schedule contained in the permanent parenting plan without following the procedure set forth in Tenn. Code Ann. § 36-6-405(a)?
2. Whether the lower court erred in interpreting the MDA as denying Wife entitlement to one-half of Husband's Boilermakers National Annuity Trust?
3. Whether the lower court erred in finding that Husband satisfied his burden of proof for the affirmative defense of accord and satisfaction?
For the following reasons, we affirm.
On appeal, a trial court's findings of fact are presumed to be correct, and we will not overturn those factual findings unless the evidence preponderates against them. Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). Evidence preponderates against a trial court's finding of fact when it supports another finding of fact with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). We review a trial court's conclusions of law de novo with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
On appeal, Appellant asserts that the chancery court erred when it modified the residential sharing schedule in the permanent parenting plan without following the procedure for modification as proscribed in Tenn. Code Ann. § 36-6-405(a). Furthermore, Appellant argues that because Tenn. Code Ann. § 36-6-405(a) was not followed, she lacked notice that visitation issues would be decided and thus, the order is a violation of her due process rights and an unwarranted interference with her fundamental parental rights. We affirm.
A permanent parenting plan is "a written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities and the establishment of a residential schedule. . . ." Tenn. Code Ann. § 36-6-402(3) (2005). A residential schedule "is the schedule of when the child is in each parent's physical care, and it shall designate the primary residential parent; in addition, the residential schedule shall designate in which parent's home each minor child shall reside on given days of the year, including provisions for holidays . . . ." Tenn. Code Ann. § 36-6-402(5) (2005). The permanent parenting plan must include a residential schedule: "The court shall make residential provisions for each child, consistent with the child's developmental level and the family's social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child." Tenn. Code Ann. § 36-6-402(8)(b) (2005). The statute lists several factors to help the court in determining the residential schedule, including ...
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