Moore v. Moore
| Decision Date | 01 June 2000 |
| Docket Number | 98-00379 |
| Parties | SANDRA DIANE MOORE v. DANNY MICHAEL MOOREIN THE COURT OF APPEALS OF TENNESSEEAT JACKSON |
| Court | Tennessee Court of Appeals |
This appeal arises from an action for divorce filed by plaintiff-Wife in the Crockett County Chancery Court. Following defendant-Husband's answer and counter-complaint for divorce, the parties entered into a consent order for support and other relief. The court entered an order granting divorce and approving the parties' agreement. Subsequently, the court entered an order awarding Wife alimony in futuro and a significant amount of the marital assets. The court also found that stock in a corporation was a marital asset and included the stock in Husband's award of marital assets. Husband appeals both the award of alimony and the court's characterization of the corporation stock as a marital asset.
Tenn.R.App.P. Rule 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed in Part, Reversed in Part and Remanded
James F. Butler, SPRAGINS, BARNETT, COBB & BUTLER, Jackson, for Appellant, Danny Michael Moore
L. L. Harrell, Jr., HARRELL & HARRELL, Trenton, for Appellee, Sandra Diane Moore
OPINION
Danny Michael Moore ("Husband") appeals from the trial court's award of alimony and division of marital assets in this divorce action. On appeal, Husband asserts that the trial court erred in awarding alimony in futuro to Sandra Diane Moore ("Wife"). In addition, Husband claims the trial court erred in including stock in a corporation as part of marital assets subject to equitable division. For the following reason, the decision of the trial court is affirmed in part and reversed in part and remanded.
The parties had been married for approximately twenty-six years when Wife filed a divorce action on December 11, 1996, alleging inappropriate marital conduct and irreconcilable differences. Husband filed an answer and counter-complaint for divorce, alleging irreconcilable differences and inappropriate marital conduct by Wife. On January 10, 1997, the parties entered into a consent order for support and other relief.1 Husband subsequently amended his counter-complaint to allege adultery by Wife. On September 8, 1997, the court entered an Interim Order Granting Divorce and Approving Agreement of parties.2 On August 4, 1998, the court entered an order on the remaining issues.3 Pursuant to this order, Wife was awarded alimony in futuro of one thousand dollars per month. In addition, Wife was awarded marital assets including the parties' residence, shop, and rental property. Husband's marital property award included stock in his business as well as another corporation. Husband appeals based on the facts as set forth below.
From all accounts, the parties' marriage was very turbulent. Both parties committed adultery and Husband was physically and verbally abusive to Wife and the parties' children.4 For instance, Husband struck Wife with a chain, injuring her arm, and kicked the parties' daughter in the stomach. After Wife filed for divorce, Husband accosted her in her yard, spraying her with weed-killer and threatening her.
For the majority of the marriage, Wife was a homemaker, staying at home with the parties' four children. Wife has only a tenth grade education although she did earn a GED. Wife has worked intermittently throughout the course of the marriage. At various times Wife worked as a substitute teacher, a secretary, a restauranteur, and a convenience store clerk. At the present, Wife is earning minimum wage as a convenience store clerk. According to Wife, her monthly expenses at the time of divorce totaled around seventeen hundred dollars a month.
While married, Husband worked at several different jobs before forming a corporation known as Moore Pumps. Wife provided some of the start-up capital for this corporation, as well as working as a secretary there on occasion. At the time of the divorce, Husband was paid approximately two thousand five hundred dollars a month by Moore Pumps. Moore Pumps has assets of around thirty-five thousand dollars. In addition, the company generates about fourteen thousand dollars worth of income per month.
In 1994, Husband decided to form another corporation, known as T-MAC Metals, in order to purchase scrap metal. The corporation was named after the parties adult children: Tonya, Michael, Anthony, and Clint. The children were named as shareholders, directors, and officers of the corporation. Each child owns twenty-five percent of the corporation. While the parties' provided initial capital of five thousand dollars secured by notes from the children, neither Husband nor Wife was listed on the corporate charter or corporate tax returns. In addition, neither Husband nor Wife received a profit or distribution from T-MAC.
T-MAC corporation bought a parcel of land inside Madison County that was to be used for Moore Pumps. According to Wife, she thought that the land was purchased by Moore Pumps. Wife testified that neither she nor children knew that T-MAC owned the property until the court proceedings. At trial, however, one of the parties' children testified that Wife was aware that T-MAC, rather than Moore Pumps, purchased the land. Although the current value of the land is disputed; estimates at trial put the value at between one hundred and fifteen and one hundred and twenty-five thousand dollars.
At trial, the ownership of T-MAC metals was hotly contested. According to Wife, T-MAC was essentially a straw-man corporation used by Husband to further the business of Moore Pumps. Wife testified that this was necessary because businesses would not sell the material to Moore Pumps because it was a competitor. Wife asked that T-MAC be classified as a marital asset subject to equitable division by the court. Husband testified that T-MAC was not a marital asset, but rather a distinct business entity owned by the parties' children.
By order entered on December 15, 1998, the court awarded Wife alimony in futuro of one thousand dollars a month. In addition, the court held that T-MAC was a marital asset and took its worth into consideration when dividing the assets. Wife was awarded the marital home, the shop, and a rental house owned by the parties. Husband's award of marital assets included the stock and land owned by T-MAC as well as the stock and assets of Moore Pumps. Husband appeals.
On appeal, Husband asserts that the trial court erred in classifying T-MAC as a marital asset and including it in his award. Husband also asserts that the trial court erred in awarding Wife alimony in futuro. In addition, Husband asserts that the trial court erred in awarding all of the parties' real property to Wife.
Pursuant to Rule 13 of the Tennessee Rules of Appellate procedure, the standard of review is de novo upon the record, with a presumption of the correctness of the finding of the trial judge. As such, we find it appropriate to note that trial courts have broad discretion in dividing the marital estate and making an award of alimony upon divorce. Loyd v. Loyd, 860 S.W.2d 409, 411 (Tenn. Ct. App.1993); Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App.1984). In a non-jury case such as this one, we may reverse the trial court only if the evidence preponderates against the finding of the trial judge. See Rule 13(d) TENN. R. APP. P.
Husband asserts that the trial court erred or abused its discretion in making an award of alimony in futuro of one thousand dollars a month to Wife until her death or remarriage. Husband claims that both the amount of alimony and the period over which it is to be paid are excessive. For the following reasons, we find that the trial court did not err in this award.
The trial court has broad discretion both in determining whether to award alimony and in determining the amount and duration of any alimony award. Tenn. Code Ann. § 36-5-101; Young v. Young, 971 S.W.2d 386, 390 (Tenn. Ct. App. 1997) citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995); Self v. Self, 861 S.W.2d 360, 361 (Tenn.1993); Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App.1994); Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. Ct .App.1993); Houghland v. Houghland, 844 S.W.2d 619, 621 (Tenn. Ct. App.1992); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App.1986); Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn. Ct. App.1984); Newberry v. Newberry, 493 S.W.2d 99, 102 (Tenn. Ct. App.1973). Generally, the appellate court will not alter a trial court's award of alimony unless the award is not supported by the evidence or is contrary to the public policy embodied in the applicable statutes. Brown, 913 S.W.2d at 169; Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App.1988); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App.1986).
The decision to award alimony is factually driven and requires a balancing of the factors set forth in Tenn. Code Ann. § 36-5-101(d)(1).5 Denton v. Denton, 902 S.W.2d 930, 932 (Tenn. Ct. App.1995); Loyd, 860 S.W.2d at 412. Courts have previously determined that the two most important factors considered when deciding a proper award of alimony are the need of the spouse to whom alimony is awarded and the ability of the other to pay. Aaron, 909 S.W.2d at 410; Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App.1995); Smith v. Smith, 912 S.W.2d 155, 159 (Tenn. Ct. App.1995); McCarty v. McCarty, 863 S.W.2d 716, 720 (Tenn. Ct. App.1992); Loyd, 860 S.W.2d at 412; Gilliam, 776 S.W.2d at 86; Lancaster, 671 S.W.2d at 503; Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App.1989). In addition, the fault of a spouse in causing the divorce is considered in the alimony award determination. Tenn. Code Ann. § 36-5-101(d)(1)(K); Aaron, 909 S.W.2d at 410-11; Gi...
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