Miller v. Miller
| Decision Date | 31 August 2000 |
| Docket Number | 99-00724 |
| Parties | LOIS LYNN MILLER v. JAMES EARL MILLERIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE June 2000 Session Filed |
| Court | Tennessee Court of Appeals |
A Direct Appeal from the Circuit Court for Davidson County No. 98D-1144
The Honorable Muriel Robinson, Judge
In this divorce, both Husband and Wife have appealed contesting the trial court's division of marital property and alimony awards. The division of marital property is affirmed, alimony awards are modified, and the case is remanded for a determination of the value of Husband's retirement plan and a proper division thereof.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Modified in Part; Reversed in Part; Affirmed in Part and Remanded.
Jack Green, Nashville, For Appellant, James Earl Miller
Robert L. Jackson, Nashville; Larry Hayes, Jr., Nashville, For Appellee, Lois Lynn Miller
OPINION
This is an appeal from a final decree of divorce by the Circuit Court of Davidson
County. Lois Lynn Miller (hereinafter "Wife") filed a complaint for divorce against James Earl Miller (hereinafter "Husband") on April 8, 1998. After a non-jury trial, the trial court awarded the divorce to Wife on the grounds of inappropriate marital conduct. The final decree awarded alimony in futuro, alimony in solido, and attorney fees to Wife and classified and divided the parties' marital property. Husband has appealed, and Wife also presents issues for review.
The parties were married in January of 1988. At the time of the marriage, Husband was 48 years old, and Wife was 58 years old. The marriage lasted 11 years. There were no children of the marriage. After about three years, the marriage began to deteriorate, but the parties continued to live together. The parties did not acquire title or interest to real property but lived in an apartment that had been occupied by Husband before the marriage. Husband's total income during the marriage was $363,086.00. Wife's total income during the marriage was $214,867.00. Throughout the marriage, Husband paid the rent and utilities. Wife purchased all of their groceries and cleaning supplies, as well her own clothes, car, and gasoline.
Wife filed for divorce alleging inappropriate marital conduct on the part of Husband and irreconcilable differences. A trial was held on September 20, 1999. At the time of trial, Husband was 60 years old, and Wife was 70 years old. Wife testified that she worked throughout the marriage until 1998, when she applied for and was granted social security benefits in the amount of $963.00 per month and medicare coverage. Wife testified to monthly expenses of $1,432.00.
Husband testified that during the marriage, he worked for Avco, which was subsequently known as Textron, and then Aerostructures. Prior to the marriage, Husband had retirement funds and stocks in mutual funds. Husband testified that Wife signed a waiver making Husband's children the beneficiaries of a Lincoln Life account. Husband further stated that all accounts were established prior to the marriage and that neither party contributed to accounts during the marriage. The accounts included a Heritage Federal Credit Union Account, a CD with J.C. Bradford, a CD with Heritage Federal, two Lincoln Life IRAs, and a Textron pension fund.
At the close of proof, the court stated from the bench that the demise of the marriage after 2 years was the fault of both parties, but that they chose to continue to live together and "be basically miserable for 8 years." The court found that during the marriage the parties chose to keep their finances separate, maintaining separate checking accounts, paying separate bills, and keeping separate retirements and 401(K) accounts. The court noted, however, that Wife paid for their shared groceries in addition to her own expenses, allowing the Husband to "compile a sizeable estate." The court found that although Wife made no monetary contributions, she maintained the marital home for 11 years. The trial court noted that Wife is 10 years older than the Husband, is retired, is on a fixed income, and has health problems.
A final decree granting Wife a divorce was entered on September 29, 1999. The final decree divided the property as follows:
IT IS FURTHER, ORDERED, ADJUDGED and DECREED by the Court that the following non-marital accounts shall be awarded to Mr. Miller: Heritage Federal Credit Union account 402500173 (Money Management Account); Heritage Federal Credit Union account 402500173 (Prime Share Account); Heritage Federal Credit Union account 402500173 (Checking Account); IDEX II Mutual Fund account 1000131757; the J. C. Bradford Certificate of Deposit; the Heritage Federal Certificate of Deposit; Lincoln Life IRA account 96-9148992; and Lincoln Life IRA account 96-900817.
IT IS FURTHER, ORDERED, ADJUDGED and DECREED by the Court that the following marital assets shall be awarded to Mrs. Miller: $7,000.00 of Dean Witter Fund account 303-043020; Dean Witter Fund account 308-052604-054 (inheritance).
IT IS FURTHER, ORDERED, ADJUDGED and DECREED by the Court that the following accounts are deemed marital property to be equally divided between the parties: Aerostructures Corporation 401 (K) account 402500173-62532, approximately $24,000.00; the Delaware Group Roth IRA account 600005455, approximately $1,856.46; Essential Service Inc. Profit Sharing Sun Trust account 465-40-2982, approximately $20,920.55; Essential Service Inc. 401(K) account 465402982, approximately $17,668.00. The balances in these accounts shall be divided equally between the parties with the value determined as of September 20, 1999.
Wife was awarded alimony in futuro of $850.00 per month until death or remarriage and alimony in solido of $65,000.00. She was also awarded $4,500.00 in attorney fees.
Husband appeals, bringing three issues for review:
1. Whether the trial court abused its discretion in awarding Wife alimony in solido in the amount of $65,000.00?
2. Whether the trial court abused its discretion in awarding Wife alimony in futuro of $850.00 per month?
3. Whether the trial court abused its discretion in awarding Wife her attorneys fees in the amount of $4,500.00?
Wife raises additional issues on appeal:
1. Whether the trial court erred in classifying the following assets as Husband's separate property, thereby failing to make an equitable distribution thereof?
a. The Heritage Federal Credit Union Account, with a value of $2,050.00; the CD with J.C. Bradford, with a value of $79,000.00; and the appreciation in value in the amount of $31,899.00 of Husband's CD with Heritage Federal with value of $98,015.00
b. The appreciation in value in the amount of $120,735.00 of the Idex II Mutual Fund, with value of $136,831.00
c. Lincoln Life IRA, with value of $71,860.00
d. Lincoln Life IRA with value of $162,824,00
e. Husband's vested retirement plan with his current employer.
2. Whether Wife should be awarded her attorney's fees on appeal?
Since this case was tried by the trial court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. Tenn .R. App. P. 13(d).
Husband contends that the trial court awarded excessive alimony. He argues that the trial court did not properly consider the three most important elements in determining alimony awards: duration of the marriage, need of the wife, and non-marital assets of the husband. Husband contends that this was a marriage of short duration, with the parties living as husband and wife for a minimum of two, and a maximum of four years. Husband further asserts that Wife has social security payments of $963.00 per month, Medicare insurance, an inherited amount, with an estate acquired during the marriage of $92,134.27. Husband contends that Wife has sufficient monies of her own and does not need, nor has she demonstrated the need for, the amount of alimony awarded by the trial court. With regard to the trial court's award of $65,000.00 in alimony in solido, Husband asserts that the only possible basis for the trial court's award was the value of the stock that he acquired prior to the marriage.
Regarding Husband's Aerostructures Federal Credit Union Account (later called Heritage Federal Credit Union), Wife claims that during the marriage he deposited some of his paychecks, monies from matured CDs, and disability payments into that account. Wife contends that the J.C. Bradford CD was acquired during the marriage. Wife asserts that funds in the Credit Union account and funds to purchase the CD were co-mingled with marital funds. Wife claims to be entitled to an equitable division of the increase in value of Husband's investments during the marriage (particularly his Idex fund), because she made a significant and substantial contribution to this marriage. Wife also asserts she is entitled to an equitable division of the increase in value of Husband's IRAs.
In her brief, Wife submits that the trial court's award of alimony in solido was most likely in lieu of an equitable division of the increase in value of Husband's assets during the marriage. She further concedes that it would be improper to award her both alimony in solido and an equitable division of Husband's assets.
We address the trial court's division of property first. In Batson v. Batson, 769 S.W.2d 849 (Tenn. Ct. App. 1988), the Middle section of the Tennessee Court of Appeals addressed the issue of division of property in a divorce. The first order of business for a trial court in the division of property is to classify the property, giving each party their separate property, and then dividing the marital property equitably. Batson, 769 S.W. 2d at 856. (citations omitted).
T.C.A. ...
To continue reading
Request your trial