Kelly v. Kelly, E2012-02219-COA-R3-CV

• Decision Date: 06 August 2013
• Docket Number: No. E2012-02219-COA-R3-CV,E2012-02219-COA-R3-CV
• Parties: TERRI ANN KELLY v. WILLARD REED KELLY
• Court: Tennessee Court of Appeals

TERRI ANN KELLY v. WILLARD REED KELLY

No. E2012-02219-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

May 15, 2013 Session

FILED: AUGUST 6, 2013

Appeal from the Circuit Court for Hamilton County

No. 11D2052

Jacqueline S. Bolton, Judge

This appeal arises from a divorce and child custody determination. After 18 years of marriage, Terri Ann Kelly ("Wife") sued Willard Reed Kelly ("Husband") for divorce in the Circuit Court for Hamilton County ("the Trial Court"). The Trial Court, among other things, awarded Wife alimony and custody of the parties' son, Will. Husband appeals, raising several issues. We reverse the Trial Court in its award of custody of Will to Wife. We modify the Trial Court's division of the marital estate and its award of alimony to Wife. Finally, we affirm the Trial Court as to its award of attorney's fees to Wife. We affirm, in part, as modified, and reverse, in part, the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed,

in part, as Modified, and, Reversed, in Part; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY, J., joined. CHARLES D. SUSANO, JR., P.J., filed a dissenting opinion.

Richard A. Schulman and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the appellant, Willard Reed Kelly.

Jennifer H. Lawrence, Chattanooga, Tennessee, for the appellee, Terri Ann Kelly.

OPINION

Background

In October 2011, Wife sued Husband for divorce. In turn, Husband filed an answer and counterclaim. This case was tried over the course of two days in July 2012. Numerous witnesses testified. We will limit our discussion of the evidence to that relevant to the issues on appeal.

Wife, 44, testified. Wife had two children with Husband: Will, 15, and Ann, 13. Husband is a stockbroker by profession. Wife attended the University of Tennessee and has a Bachelor's of Science degree in human ecology, textiles, merchandising and design. Wife worked at Jared's, a retail store, for a period of time before she was married. The most money Wife had ever earned was approximately $37,000 per year when she worked with First American Home Care. By the time of the divorce, Wife was working for minimum wage in Chattanooga. As of trial, Wife was searching for a better job, including one that could pay up to $55,000 per year.

Wife testified to her history with Husband. Wife met Husband at the University of Tennessee around 1988. The parties married in 1992. When the parties' first child, Will, was born, Wife was not working. Apart from a small home business she had with a friend, Wife did not work outside the home until the divorce was filed. The couple lived in Knoxville for a number of years before Husband received a promotion at Legg Mason. Wife and Husband moved to Nashville for four years. Wife stated that she was the primary caretaker of the children throughout this period . According to Wife, in around 2007, Smith Barney bought Legg Mason, and Husband moved to Charlotte to be a branch manager of an office. Wife stated that the couple bought a home in Charlotte for $1.6 million.

Husband then took on a new position in Richmond, Virginia. Wife remained in Charlotte with the children for a year before moving to Richmond. Around this time, the parties' marriage became strained, and Wife suspected Husband of having an affair. Despite the difficulties, Wife moved to Richmond in a bid to save the marriage. However, the couple separated. Throughout this period, Wife was the primary caretaker of the children. Husband attempted in vain to reconcile with Wife through various emails. In 2011, Wife told Husband she wanted to leave Richmond with the children. According to Wife, she relocated to Tennessee but Husband prevented Will from going with Wife. Eventually, Husband moved with Will to Nashville, Tennessee.

Husband, 44, testified. Husband began his career as a trainee stockbroker atage 22. Husband went on to work for Legg Mason. In his last year in Charlotte, Husband earned around $500,000 per year. Husband acknowledged having an inappropriate relationship with a coworker during the time he split between North Carolina and Virginia. With his problems in his personal life, Husband's superior decided to demote him from his managerial position to stockbroker. This entailed a massive decline in income for Husband. By trial, Husband was working on the last month of a $100,000 per year contract as a stockbroker. In his new position moving forward, Husband was guaranteed only to earn $2,800 per month. This sum was a draw against actual earnings. Husband testified that it would be very difficult to build a new book of business in the future. As of trial, Husband continued to look for a better job.

Wife sought custody of Will. Will's behavioral and educational issues were testified to by Janet Wulff ("Wulff"), a counselor at Brentwood High School. Wulff testified by telephone regarding Will. Wulff stated that Will was a "sweet" kid who, nevertheless, had engaged in certain inappropriate behaviors. According to Wulff, Will was associating with certain unspecified bullies at school. Will received in-school suspensions for his misbehavior. Wulff also asserted that she was a "proponent of kids being with their mom and their siblings" and that "[i]n most cases I think being with mom and siblings . . . seems to be most beneficial."

Will also testified in chambers concerning his wishes. Will testified to a desire to remain with his father. Will expressed a strong desire not to move again.

In July 2012, the Trial Court entered its Memorandum Opinion and Order. The Trial Court divided the marital estate such that Wife received $237,000 in net assets while Husband received a negative $213,541. The Trial Court made a number of factual findings:

Part of Husband's distress in the marriage centered around the enormous amount of money that the parties spent. The parties lived in very nice homes, bought antiques and art. About the time the parties were in Richmond, the Morgan Stanley stock which had been worth well in excess of a million dollars was reverse split. Nine to ten thousand shares became nine hundred shares. Those shares which were able to be liquidated brought $80,000.00 The parties held some restricted stock. The house payment in Charlotte was some $7,000.00 per month plus $1,600.00 on a HELOC to CitiBank. In Exhibit 25 at trial, the Morgan Stanley financial management account of Father indicated that he had over $316,000.00 in living expenses for the year 2011. Deposits which went into the account totaled $643,659.00, withdrawals of $116,00.00, checks written for $458,000.00, credit card activity of $16,000.00 leaving a balance of $47,000.00 at year's end 2011. All of thisoccurred though Father had lost his job in April of that year. The spending continued even after the divorce was filed. Father bought a truck for $11,000.00 and two guns for $1,000.00. His average income over a three year period excluding 2012, was well over $500,00.00. His average earnings for two good years of 2010 and 2011 and the $100,00.00 for 2012, still showed average income of almost $400,000.00. The parties' debts are enormous. There is no doubt that the manager of the parties' finances was Father. He testified he got a $250,000.00 line of credit from Morgan Stanley during the time he was trying to save the parties' home in Charlotte. None has been repaid. He also owes a $100,000.00 debt from a now defunct real estate transaction in Athens, Georgia. He pays $1,000.00 a month on that note. He has a personal line of credit at Bank of America (which Mother cosigned) of approximately $62,000.00. Father got a hardship reduction so he pays $500.00 a month on instead of $2,500.00. (Format modified and footnote omitted)

With respect to alimony, the Trial Court awarded Wife $5,000 per month in transitional alimony for 10 years. Additionally, the Trial Court awarded Wife $10,000 in attorney's fees.

The Trial Court awarded custody of Will to Wife. The parties' daughter, Ann, would remain with Wife. The Trial Court made findings about Will's status:

The Court is very concerned that upon learning that his Wife was to take the children and return back to Chattanooga with them, following several years of marital upheaval, it was Father's position that the Mother had blind-sided him with the divorce. He swept in to keep Will in Richmond. The Court finds that the Father has not been as attentive as he should have been to make sure in this transitional year for Will that he did his homework and studied. The Court finds that the Father did not put his son's best interest first, in that he was more of a buddy to his son than a Father. He did not make the hard choices to disallow Will from social activities when his grades were not good. He did not apparently take seriously the "pranks" which the school deemed "severe." Will was not further disciplined by his Father other than what the school did for inappropriate behavior. Father lacked judgment in some of his responses to his son. The Court finds that the Father lacks the parenting skills necessary to understand the delicate state of a 15 year old boy whose parents have gone through a very difficult time, as well as the entire family.

The Court further finds that it is in the best interest of Will that he remain in the same home with his sibling, Ann, who is just two years younger than he and to whom he opined looks up to him and mimics him. The Courtfurther finds that the Mother has a large network of family here in Chattanooga to nurture and support Will and that it is the paramount best interest of Will that he be returned to Chattanooga to be reunited with his Mother and sister and the extended family. There is proof in the record that Will would be considered for placement at his sister's school . . . which the Court finds is an excellent placement for Will.

The Trial Court did not implement a parenting plan in its order. Both ...