Rogin v. Rogin, W2012-01983-COA-R3-CV
| Decision Date | 10 July 2013 |
| Docket Number | No. W2012-01983-COA-R3-CV,W2012-01983-COA-R3-CV |
| Parties | ALEXANDER A. ROGIN v. JOELLE L. ROGIN |
| Court | Tennessee Court of Appeals |
Direct Appeal from the Circuit Court for Shelby County
This appeal involves various financial issues related to a divorce. The trial court: (1) calculated both parents' incomes for purposes of child support; (2) required Father to pay a portion of the children's private school tuition; (3) entered a permanent parenting plan giving Mother final authority over major decisions regarding the children; (4) divided the marital property; (5) denied Father's request for transitional alimony; (6) awarded Father alimony in solido; and (7) denied both parties' requests for attorneys fees. We: (1) reverse the trial court's determination that Father is willfully and voluntarily underemployed; (2) vacate the trial court's calculation of Mother's income; (3) vacate the trial court's ruling requiring Father to pay a portion of the children's private school tuition; and (4) remand for appropriate findings of fact and conclusions of law. We affirm as to the remainder of the issues presented. Vacated in part, reversed in part, affirmed in part, and remanded for further proceedings.
Kay Farese Turner and Madeline L. Nolan, Memphis, Tennessee, for the appellant, Alexander A. Rogin.
Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Joelle L. Rogin.
OPINIONAppellant Alexander Rogin ("Father") and Appellee Joelle Rogin ("Mother") were married in 2003. Both parties earned Masters of Business Administration degrees ("MBAs") from Vanderbilt University. The parties have two minor children, who attended private school throughout the marriage. The parties separated, but maintained the same residence, in November 2010. Father filed for divorce on May 2, 2011. Mother answered and filed a counter-claim for divorce on June 10, 2011. Trial was scheduled, but was continued because, approximately six weeks from the original trial date, Mother listed six potential expert witnesses in her interrogatories. On February 9, 2012, the parties entered into a consent order establishing a temporary parenting plan. The temporary parenting plan: (1) provided that Mother would pay Father $62,500.00 as a premature distribution of marital property; (2) set out a parenting schedule for the children; and (3) provided that the parties would have joint decision making authority with regard to the children, with all disputes being referred to a neutral decision-maker. In addition, the consent order provided that Father was to vacate the marital home and that Mother would pay him alimony pendente lite in the amount of $1,500.00 per month from January 2012 until the time of trial.
The trial was eventually held on April 30, 2012 through May 3, 2012. At trial, Father testified that he had lost his job in October 2008 at Kemmons Wilson due to cut backs in his department—real estate—and the general down-turn in the economy at that time. He testified that he had been networking in order to gain new employment, but that he had not, to date, been successful in procuring full-time employment. During his testimony, Father produced a list of the people he had networked with over the intervening years including Mother's father and Mother's financial advisors, but could not say which of those people he had actually sent resumes to. Father testified that he had not employed a head hunter. However, Father did testify that his networking had led to a number of part-time consulting jobs, which he had taken in order to further network. In addition, Father testified that he believed his skills were best suited to a start-up partnership venture rather than traditional employment, but clarified that he would not have turned down traditional employment had he ever received such an offer. Father testified that the loss of his job caused the demise of the marriage because Mother was critical of his lack of success. Father further testified that at the time of trial, he was working as an independent consultant, making approximately $1,487.00 per month. Father testified that since the separation, including when Father still lived in the marital residence, he used none of his income to fund household expenses or to pay child support.
Mother took issue with Husband's decision to try to pursue employment with various start-up companies that subsequently folded, instead of seeking traditional employment. Mother employed an occupational expert that opined that Husband's earning capacity wassomewhere between $75,000.00 and 125,000.00 given his experience and education. Mother testified that Father was offered a job out of state in 2011, paying between $150,000.00 and $200,000.00. Father testified that he declined that offer because it would have meant moving the family away from their home and Mother losing her job. In contrast, Mother testified that the parties delayed moving until Father could gain the required license for the position, but that Father never endeavored to obtain the license.
Father also testified that he had gone into significant debt during the pendency of the divorce in order to support himself, as Mother froze the home equity line of credit and his credit card. Mother, however, took issue with this testimony, noting that Father had taken several trips to see concerts during the separation and the pendency of the divorce. Further, Father admitted that he had purchased a $200,000.00 home during the pendency of the divorce and had undertaken approximately $125,000.00 in renovations, despite Father's testimony that the home was in "livable" condition when it was purchased. In addition, Mother testified that Father was able to fund his continued recreational use of marijuana. Indeed, Father admitted that during the marriage and the separation, he sometimes smoked marijuana outside the parties' home while the children were inside.
With regard to the children, Father testified that Mother made all of the child care decisions unilaterally, or after consultation with her family or friends. Father further testified that he informed Mother that he wanted the children to attend the public school in Mother's school district, but that Mother had not taken any action to enroll the children there. Father also testified that Mother's parents paid for the children's tuition throughout the marriage, but had only stopped at Mother's request due to the divorce. Mother testified, in contrast, that the parties agreed to send both children to private school. Indeed, she pointed to Husband's own Complaint for Divorce in which he stated that the parties' children would continue to attend St. Mary's. Mother was also only able to provide a range of amounts for the annual tuition at St. Mary's. However, her affidavit of income and expenses listed a monthly figure of $2,192.00, as the combined tuition for both children. Mother further testified that although Father was a "hands-on" parent prior to the separation, once he lost his job, he was no longer the interested parent that he once had been. Indeed, testimony from the children's nanny and baby-sitter corroborated Mother's testimony; both the nanny and babysitter testified that they dealt almost exclusively with Mother after Father lost his job and that Father had become "distant" and disinterested. The record contains several emails between Mother and Father, in which Mother requested that Father take the children on their school holidays. The emails show that Father was generally unwilling to care for the children during these holidays, citing either work commitments or out-of-town trips. Neither Mother, the nanny, nor the babysitter denied that Father and the children loved one another.
With regard to her income, Mother testified that, at the time of trial, she earned$142,5000.00 as a base salary from Metropolitan Bank, where she serves as a Vice President. In addition to her base salary, Mother also receives annual bonuses based on performance. Although the bonuses were not necessarily guaranteed, Mother earned $62,000.00 in bonus income in 2011 and $25,000.00 in bonus income in 2012. Mother was unsure as to whether she had received a bonus in 2010. Mother also testified that Metropolitan Bank pays a portion of her membership fee to the University Club, at a value of approximately $300.00 per month. Additionally, Mother receives vested stock options from Metropolitan Bank; documents in the record indicate that Metropolitan disbursed vested stock options to Mother valued at $11,600.00 in 2011 and $7,200.00 in 2012. In addition, Mother testified that her parents gave her a car during the pendency of the divorce. According to Husband, the car's value, as evidenced by the Kelly Blue Book, was approximately $21,400.00 at the time of trial.
Mother and her financial experts testified regarding Mother's trust, interest, capital gain, and partnership income. At the time of trial, Mother had a sole interest in the Joelle Lewis Rogin Grantor Trust ("Grantor Trust"), and a limited interest in the Myron Lewis Family Legacy Trust ("Family Trust"). In addition, Mother owned a portion of the Family Limited Partnership. According to both parties, Mother never received any disbursements from either the trusts or her family limited partnership other than to pay fees and taxes; however, Father contended that because Mother was able to request that disbursements be made to her, such income should be included in Mother's gross income for purposes of child support. Indeed, Mother's Grantor Trust specifically stated that, if Mother requested in writing "that all current net income be distributed...
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