Oakes v. Oakes

• Decision Date: 26 March 2007
• Docket Number: No. E2006-00656-COA-R3-CV.,E2006-00656-COA-R3-CV.
• Citation: 235 S.W.3d 152
• Parties: Harvey Joe OAKES v. Rhonda Gail OAKES.
• Court: Tennessee Court of Appeals

235 S.W.3d 152

Harvey Joe OAKES v. Rhonda Gail OAKES.

No. E2006-00656-COA-R3-CV.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

November 8, 2006 Session.

March 26, 2007.

Permission to Appeal Denied by Supreme Court August 13, 2007.

Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, Harvey Joe Oakes.

Cindy A. Howell, Sparta, Tennessee, for the appellee, Rhonda Gail Oakes.

OPINION

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and SHARON G. LEE, J., joined.

This is a divorce case. Harvey Joe Oakes ("Husband") appeals, arguing that the trial court erred (1) in awarding Rhonda Gail Oakes ("Wife") one-half of his military disability benefits; (2) in classifying a particular vehicle as marital property; (3) by failing to make an equitable division of the parties' marital estate; (4) in awarding Wife $400 per month in rehabilitative alimony for 36 months; and (5) in awarding Wife attorney's fees. Wife contends that her alimony should be in futuro rather than rehabilitative. The trial court's award to Wife of one-half of Husband's disability benefits and its award of attorney's fees are reversed. The court's classification of the subject vehicle and the court's division of the marital estate is affirmed. The award of alimony is modified, and, as such, is affirmed.

I.

The parties were married in 1974. They are currently in their mid-50s and have two adult children. Husband served in the United States military prior to the parties' marriage. In 1970, he received a medical discharge and began receiving disability compensation from the Veteran's Administration. The monthly VA payments were initially less than $100. Over the years, the payments increased, and, at the time of the hearing below, Husband was receiving $2,553 each month.

Husband obtained his GED. He held several jobs during the parties' marriage. In 1984, he began working as a custodian for the United States Postal Service. He later became a building equipment mechanic for the Postal Service. Husband retired in 1998. Wife also worked several jobs during the marriage, but she did not work during the last few years of the parties' marriage because, according to her, she was responsible for providing care and transportation for Husband. Wife also states that she provided care for Husband's mother.

The parties separated in June 2004. At that time, Wife withdrew $39,700 of the parties' funds on deposit. In July 2004, Husband filed for divorce, citing the grounds of inappropriate marital conduct and irreconcilable differences. Wife filed an answer and counterclaim, citing the same grounds. The parties later stipulated to the existence of grounds for divorce.

Following the parties' separation, Wife obtained a license to be a certified nursing assistant. She subsequently worked at a hospital, earning $6.75 per hour, and later at a nursing home facility, earning $9.50 per hour. Two months prior to the parties' divorce hearing, Wife quit her job at the nursing home facility. She testified that she quit because the job was too difficult and because she was having health problems. Specifically, Wife claimed she was suffering from asthma, emphysema, and hernias.

Husband has monthly revenue of $4,258.44. In addition to the previously-mentioned $2,553 per month from the VA, Husband receives monthly Social Security disability benefits of $1,477 and a monthly pension from the Postal Service of $228.44.

A plenary hearing was held in October 2005. The court subsequently filed a memorandum opinion, in which it made the following findings and reached the following conclusions:

Wife is a CNA, and was gainfully employed earning $9.50 hourly until the date for this hearing was set when she quit work in the mistaken belief that unemployment would enhance her entitlement to alimony. While she professed to be suffering from various ailments, she was not convincing and presented no medical proof of any of these alleged ailments. Her credibility generally suffers, but is reduced to a weakened state only. The foibles of a contested divorce, which is a traumatic experience for any person with sensibilities, should be taken into account.

* * *

These parties have been married for thirty (30) years, and all of their assets qualify as marital property, except the real estate inherited by Husband which clearly is his separate property. The fact that it was inherited during the marriage does not change its character to marital property. Wife is under a misapprehension as to this principle. Accordingly, the marital estate will be divided, not necessarily equally, but equitably.

Wife had been living in the jointly-owned residence since their separation in June 2004. Husband has been living with his mother.

Wife is awarded the marital residence, having a value of $92,000.00. (It is encumbered by a $6,000.00 mortgage paid monthly by Husband's disability insurance carrier, at no cost to him, and this obligation will continue until the debt is discharged.)

Wife is awarded the 2003 Mitsubishi automobile, which has a value of $10,000.00. It is encumbered by a lien in the amount of $8,148.00. Husband should pay one-half of this amount (whatever it is). He may do so monthly, or in a lump sum.

Wife is awarded the household goods and furnishings now in the residence. Husband is awarded the goods and furnishing he removed from the residence, together with a 9mm handgun. These values are $6,486.00 and $1,055.00 respectively. Wife is awarded the yard equipment presently located at the residence, having a value of $2,604.00. The yard equipment and tools currently in the possession of Husband of the value of $4,150.00 are awarded to him.

The real estate, other than the residence, is Husband's separate property. As stated, it is not marital property subject to distribution.

The 1987 pick-up truck and the 2000 [F-150] pick-up truck are awarded to Husband. These have a value of $11,300.00.

The 401(K) of the asserted value of $100,000.00 will be distributed 75 percent to Husband, and 25 percent to Wife.

Wife took $39,000.00 from accounts when the separation occurred. This amount will be debited $32,000.00 for her support during the separation. The balance of $7,000.00 is distributed to [W]ife.

Husband receives $2,553.00 monthly from the Veterans Administration for disability compensation. (This is not a retirement benefit; his military service spanned nineteen (19) months and he was discharged for chronic hypertension.) As the Court understands, this amount is tax-free. Wife is awarded one-half of this amount, as and for a distribution of marital assets. It should not be construed as alimony. This equal division will remain constant, whatever the amount. If the VA benefits are terminated, Husband[']s obligation hereunder also ends.

Husband also receives $1,447.00 monthly from the Social Security Administration for total disability. Wife is not awarded any amount from this benefit, for this reason: She is a CNA and can be gainfully employed, as heretofore stated.

Husband has a small pension from the U.S. Postal Service of $228.44 monthly from which Wife is awarded nothing. In sum, Wife receives: [the marital] residence, $92,000; the Mitsubishi net $1,852.00; household and yard goods, $9,000.00; 401(K) plan, $25,000.00; and, the balance, $7,000.00, of the funds she took upon separation, and currently in her possession. These allocations total $134,942.00.

Husband receives the household goods and yard equipment of the value of $5,205.00; the trucks, having a value of $11,300.00; and, the 401(K), $75,000.00. These allocations total $91,505.00[.]

Wife is awarded $400.00 per month, for thirty-six (36) months as and for rehabilitative alimony. . . .She will also receive one-half of Husband's military disability monthly compensation, (currently $1,276.00) and can earn at least $1,200.00 monthly net. Her only indebtedness is the Mitsubishi note, and she will own the residence and furnishings debt-free.

Husband will have one-half of his military monthly compensation (currently $1,276.00) tax free, his social security disability compensation of $1,447.00 monthly, and his post office retirement of $228.00 monthly, aggregating $2,951.00. He will have no residence, but lives with his mother presumably at no expense to himself. Little evidence was offered concerning his health or his ability to work, but the circumstances indicate that he is not capable of earning an income.

[Wife's Attorney]'s fee is determined to be $3000.00, of which 1500.00 is alimony in solido payable by Husband, and the balance of 1500.00 will be paid by Wife.

* * *

(Italics in original). In February 2006, the trial court filed its final judgment, awarding the parties an absolute divorce and incorporating the foregoing findings and conclusions. Husband then filed a notice of appeal.

II.

Because this is a non-jury case, our review is de novo upon the record of the proceedings below with a presumption of correctness as to the trial court's factual findings, a presumption we must honor unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d). We review the 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).

III.

Husband raises the following issues on appeal:

1. Whether the trial court erred in awarding Wife one-half of his military disability benefits.

2. Whether the trial court erred in classifying the 2000 F-150 pickup truck as marital property.

3. Whether the trial court failed to make an equitable division of the parties' marital estate.

4. Whether the trial court erred in awarding Wife alimony.

5. Whether the trial court erred in awarding Wife attorney's fees.

Wife asserts that the trial court erred in awarding her rehabilitative alimony, rather than alimony in futuro. We will address each issue in turn.

IV.

Husband first...