Luplow v. Luplow

• Decision Date: 19 June 2014
• Docket Number: No. M2013–01399–COA–R3–CV.,M2013–01399–COA–R3–CV.
• Citation: 450 S.W.3d 105
• Parties: Mary Lisa Gaston LUPLOW v. Martin Duane LUPLOW.
• Court: Tennessee Court of Appeals

450 S.W.3d 105

Mary Lisa Gaston LUPLOW
v.
Martin Duane LUPLOW.

No. M2013–01399–COA–R3–CV.

Court of Appeals of Tennessee.

March 25, 2014 Session.
June 19, 2014.

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Tyree B. Harris, IV, and Katherine A. Brown, Nashville, Tennessee, for the appellant, Mary Lisa Gaston Luplow.

T.J. Cross–Jones and H. David Kittrell, Nashville, Tennessee, for the appellee, Martin Duane Luplow.

OPINION

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR. and ANDY D. BENNETT, JJ., joined.

RICHARD H. DINKINS, J.

This is an appeal in a divorce case, where Wife appeals the classification and division of marital property and debt, the calculation of the division of the proceeds from the sale of the marital residence, the dismissal of the contempt petition she filed against Husband, and the failure to award her attorney fees. Husband appeals the classification of certain real property and the division of marital debt; he also requests his fees on appeal. We modify the judgment allocating the marital debt and awarding $16,691 to Wife as alimony in solido; we affirm the judgment in all other respects.

I. Procedural History

Mary Lisa Gaston Luplow (“Wife”) and Martin Duane Luplow (“Husband”) were married on September 10, 1983; two children were born of the marriage. Wife filed a complaint for divorce on June 22, 2010, alleging inappropriate marital conduct and irreconcilable differences. Husband answered the complaint on July 2 and counterclaimed for divorce, also alleging inappropriate marital conduct and irreconcilable differences. On October 25 the court entered an order requiring Husband to vacate the marital residence, to pay $3,800 per month in pendente lite alimony, and to reimburse Wife for various expenditures.

On June 24, 2011, Wife moved to have Husband reimburse her for unpaid mortgage payments, to reinstate major medical coverage, and to pay a $69,952.68 judgment

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resulting from a lawsuit against him; Wife also requested that she be allowed to negotiate settlements of outstanding credit card balances. On September 12 the court entered an order which, inter alia, granted Wife a judgment for unpaid alimony in the amount of $7,700 and ordered Husband to pay $2,200 per month in pendente lite alimony; the court ordered the judgment to be paid out of the funds from the sale of the marital residence which were being held in escrow. Wife filed a petition for criminal contempt on October 20 alleging that Husband had failed to pay alimony in accordance with the September 12 order.

Trial began on August 28, 2012; on that date, the court entered an order declaring the parties divorced pursuant to Tenn.Code Ann. § 36–4–129. The remaining matters were heard on December 11, 2012 and January 23, 2013. The court entered a Final Order of Divorce on February 14. Pursuant to Wife's motion to alter or amend, the court entered an order on May 14 requiring Husband to pay Wife one-half of any recovery that may result from potential legal action related to the lawsuit and judgment against Husband.¹

II. Issues on Appeal

Wife appeals the classification and division of marital debt, the calculation of the division of the proceeds from the sale of the marital residence, the dismissal of her contempt petition, and the failure of the court to award attorney fees. Husband appeals the classification of one parcel of real property as Wife's separate property and division of marital debt; he also requests his fees on appeal.

III. Standard of Review

Review of the trial court's findings of fact is de novo upon the record accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R.App. P. 13(d) ; Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn.2006). Review of the trial court's conclusions of law is de novo with no presumption of correctness afforded to the trial court's decision. Kaplan, 188 S.W.3d at 635.

IV. Analysis

A. Classification and Division of Property and Debt

The division of the marital estate begins with the classification of the property as separate or marital property. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn.Ct.App.2001). Therefore, separate property should not be included in the marital estate. Woods v. Woods, No. M2002–01736–COA–R3–CV, 2005 WL 1651787, at *3 (Tenn.Ct.App. July 12, 2005). Property classification is a question of fact. Bilyeu v. Bilyeu, 196 S.W.3d 131, 135 (Tenn.Ct.App.2005). Thus, we review the trial court's classification using the standard of review in Tenn. R.App. P. 13(d).

Once property has been classified as marital property, the court should place a reasonable value on property that is subject to division.² Edmisten v. Edmisten, No. M2001–00081–COA–R3–CV, 2003 WL 21077990, at *11 (Tenn.Ct.App. May 13, 2003). Once the marital property has been valued, the trial court is to divide the marital property in an equitable manner. Tenn.Code Ann. § 36–4–121(a)(1) ; Miller, 81 S.W.3d at 775. A division of

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marital property in an equitable manner does not require that the property be divided equally. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002). Dividing a marital estate is not a mechanical process but, rather, is guided by considering the factors in Tenn.Code Ann. § 36–4–121(c). Kinard, 986 S.W.2d at 230. Although marital debt is not defined by statute, it is subject to equitable division in the same manner as marital property and its definition corresponds with that of marital property provided in Tenn.Code Ann. § 36–4–121(b)(1)(A). Larsen–Ball v. Ball, 301 S.W.3d 228, 233 (Tenn.2010). Trial courts have wide latitude in fashioning an equitable division of marital property, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.1983), and this court accords great weight to the trial court's division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn.Ct.App.1996). Thus, we defer to the trial court's division of the marital estate unless it is inconsistent with the factors at Tenn.Code Ann. § 36–4–121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn.Ct.App.1994).

In disposing of the marital property and debt, the court held in part:

It is further ORDERED that from the proceeds of the parties' marital residence, after paying the negotiated balances on the Chase card and Discover cards in the amounts of $8,350.29 and $4,479.50, respectively, the Wife shall be awarded the sum of $19,804.65, and the Husband shall be awarded the remaining balance of approximately $554.45.^{[ 3 ]}

It is further ORDERED that the Husband is awarded a judgment against the Wife in the amount of $12,280, representing one-third of the parties' son's junior and senior years' tuition payment ... for which statutory interest shall accrue and execution may issue.

It is further ORDERED that the Wife shall be responsible and indemnify and hold the Husband harmless for the American Express card and Bank of America card in the name of the Wife & /or Gaston Realty Company and shall indemnify and hold the Husband harmless thereon.

It is further ORDERED that the Husband shall be responsible for the outstanding balance owed on the CitiBank credit card titled in the name of the Wife and/or Gaston Realty Company in the amount of approximately $16,691. Therefore the Wife shall be awarded a judgment against the Husband in said amount as alimony in solido, the payment of this indebtedness being necessary for the support and maintenance of the Wife.

* * *

It is further ORDERED that the Wife is awarded the property at 2244 Castleman Drive, Nashville, TN as her sole and separate property free and clear of any claim of the Husband, and the Husband is divested of any right, title and interest therein, and all interest shall vest solely in the Wife. The Wife shall be responsible for any outstanding indebtedness on said property and shall indemnify and hold the Husband harmless thereon.

Wife contends that the court's division of the marital property and debt was inequitable with respect to the court's determinations that: Wife and Husband would be equally responsible for the judgment rendered against Husband; Wife would be

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solely liable for the entire outstanding line of credit on her separate property (the “Castleman property”); Wife would be solely liable for the balance of two credit cards held in the name of her father's company, Gaston Realty; and Wife would be responsible for one-third of the private school tuition for one of the children. Husband contends that the court erred in holding that the Castleman property was Wife's separate property, in the division of certain debts, and in awarding Wife the amount of the CitiBank debt as alimony in solido.

1. The Judgment Against Husband

The marital...