Swett v. Swett
| Decision Date | 27 June 2002 |
| Docket Number | M1998-00961-COA-R3-CV |
| Parties | DAVID SWETT, SR. v. GRACE Z. ALEMAN SWETTIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County No. 96D-2516 Muriel Robinson, Judge
This appeal involves the dissolution of a nine-year marriage. Following a bench trial in the Circuit Court for Davidson County, the trial court found both parties to be at fault but awarded the divorce to the wife. The court also granted the parties joint custody of their son and divided their property. On this appeal, the wife asserts that the trial court erred by concluding that her conduct contributed to the divorce and by refusing to give her sole custody of the parties' son. Both parties take issue with the manner in which the trial court divided their property. The wife asserts that the trial court erred by classifying the husband's interest in the real property on which his family's restaurant is located as separate property and by failing to award her a portion of the appreciation in the value of his family restaurant business. The husband takes issue with the trial court's refusal to award him certain items of household furnishings. Finally, the wife asserts that she is entitled to post-judgment interest on the judgment used to equalize the distribution of the marital estate, as well as her legal expenses incurred on appeal. We have determined that the trial court's fault determination, joint custody arrangement, and division of marital property are supported by the record. Accordingly, we affirm the judgment and deny the wife's request for appellate legal expenses.
Joe P. Binkley, Jr., Nashville, Tennessee, for the appellant, Grace Zuniga Aleman Swett.
Lucinda E. Smith, Nashville, Tennessee, for the appellee, David Swett, Sr.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM B. CAIN, J., joined.
David Swett met Grace Z. Aleman Swett in 1984 while vacationing in Costa Rica. Ms. Swett was working in the beauty salon in the hotel where Mr. Swett was staying. The parties were married in November 1985 in Costa Rica and made their home in Nashville where Mr. Swett and his family operated a popular restaurant. In January 1986, Ms. Swett's two sons from an earlier marriage came to live with the parties in Nashville. Their only son was born in November 1987. The parties' relationship began to deteriorate soon after their wedding. According to Ms. Swett, Mr. Swett became verbally and physically abusive toward her, refused to help her obtain a driver's license, and discouraged her from obtaining work outside the home. For his part, Mr. Swett asserted that Ms. Swett nagged him and viewed him only as a source of income and that the parties argued frequently about one of Ms. Swett's sons from her earlier marriage.
One of the events that precipitated the eventual unraveling of this marriage occurred in late 1992 when Mr. Swett discovered that one of Ms. Swett's sons had taken $300 from his wallet. The boy asserted that the money represented unpaid wages for working in Mr. Swett's restaurant and declared that he would steal money again if given the chance. Mr. Swett insisted that the boy leave the house and paid to fly him back to Costa Rica to live with his grandmother. The boy eventually returned to Nashville in 1993 but no longer lived with the Swetts. Ms. Swett remained distressed and angry that Mr. Swett would not permit her son to live with them.
The parties began sleeping in separate bedrooms in June 1996. Following a particularly contentious argument in July 1996, Mr. Swett threatened Ms. Swett and told her that he intended to leave with their child. Ms. Swett petitioned for an order of protection and filed criminal charges against Mr. Swett following this incident. Thereafter, on August 30, 1996, Mr. Swett filed a complaint in the Circuit Court for Davidson County, seeking a divorce on the grounds of irreconcilable differences and inappropriate marital conduct.
The parties apparently continued to reside in the same house after Mr. Swett filed for divorce. Their relationship did not improve, and in November 1996, Ms. Swett filed an amended petition for an order of protection claiming that Mr. Swett had verbally and physically abused her in front of their child.1 Ms. Swett also filed a counterclaim for divorce asserting that the parties could no longer live together as husband and wife and that the sole cause of the deterioration of the marriage was Mr. Swett's continuous verbal and physical abuse. During the same month, Ms. Swett surreptitiously took two of Mr. Swett's checks and cashed them for $20,700. She used $17,000 to purchase an automobile for one of her older sons and the remaining $3,700 for her living expenses.
Following a bench trial, the trial court determined that both parties had demonstrated that they had grounds for divorce. However, despite its concern about Ms. Swett's evasiveness and the lack of corroboration for many of her allegations of misconduct by Mr. Swett, the trial court also found that Ms. Swett was less at fault and awarded her a divorce on the ground of inappropriate marital conduct. The court granted the parties joint custody of their son and determined that he would reside with Mr. Swett during the first six months of each year and with Ms. Swett during the second six months. After concluding that Mr. Swett's interest in the family restaurant business was separate property, the trial court awarded marital property valued at $254,889.60 to Mr. Swett and marital property valued at $7,500 to Ms. Swett. To equalize the distribution, the trial court directed Mr. Swett to pay Ms. Swett $140,000 within sixty days of the entry of the judgment. The court also directed Mr. Swett to pay Ms. Swett $1,300 in child support during the six months that the child was living with her and awarded Ms. Swett $600 per month in rehabilitative spousal support for sixty months.
While the parties do not take issue with the child support award or the award of rehabilitative alimony, they take issue with other portions of the judgment. Because the issues in a divorce proceeding dovetail with each other, the court should follow a consistent, logical sequence in disentangling the parties' affairs. For most divorce proceedings, this sequence is: (1) determining whether either or both parties are entitled to a divorce; (2) fashioning custody and visitation arrangements; (3) allocating the parties' separate property and debts; (4) equitably dividing the marital property and debts; (5) awarding child support; (6) awarding spousal support; and (7) considering whether to award attorneys' fees if either party has requested them. Anderton v. Anderton, 988 S.W.2d 675, 679 (Tenn. Ct. App. 1998). We will consider the issues raised by the Swetts in this order.
Despite the fact that she was awarded the divorce on the ground of inappropriate marital conduct, Ms. Swett insists that the trial court erred by finding that her conduct during the marriage gave Mr. Swett grounds for divorce. She asserts that she is blameless. We disagree.
Appellate courts employ the familiar standard in Tenn. R. App. P. 13(d) to review a trial court's findings of fact regarding the grounds for divorce. Earls v. Earls, 42 S.W.3d 877, 911 (Tenn. Ct. App. 2000); Hobbs v. Hobbs, 987 S.W.2d 844, 846 (Tenn. Ct. App. 1998). This standard requires us to defer to the trial court's findings of fact, Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000), and to presume that these findings are correct "unless the preponderance of the evidence is otherwise." This presumption, however, does not come into play when the trial court has not made specific findings of fact on a particular matter. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000).
Reviewing findings of fact under Tenn. R. App. P. 13(d) necessarily requires an appellate court to weigh the evidence to determine in which party's favor the aggregate weight of the evidence falls. The prevailing party is the one in whose favor the evidentiary scale tips, no matter how slightly. McBee v. Bowman, 89 Tenn. 132, 140, 14 S.W. 481, 483 (1890). Accordingly, the presumption of correctness in Tenn. R. App. P. 13(d) requires us to leave a trial court's finding of fact undisturbed unless we determine that the aggregate weight of the evidence demonstrates that a factual finding other than the one found by the trial court is more probably true. Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).
Our review of a trial court's findings of fact is constrained by the practical recognition that the trial judge, as the trier-of-fact, has a better opportunity to observe the manner and demeanor of all the witnesses when they testify. Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); Lindsey v. Lindsey, 930 S.W.2d 553, 556 (Tenn. Ct. App. 1996). Accordingly, we give great weight to a trial court's factual findings when they rest on the trial court's determination of the credibility of the witnesses. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Hobbs v. Hobbs, 987 S.W.2d at 847; Umstot v. Umstot, 968 S.W.2d 819, 825 (Tenn. Ct. App. 1997).
The record contains adequate evidence to support a finding that Ms. Swett's conduct was, at least to some degree, responsible for the dissolution of this marriage. Mr. Swett testified that she was constantly argumentative, that she never truly cared for him, and that she only married him for his money. Moreover, Ms. Swett did not appropriately discipline her son when he stole $300 from Mr. Swett, and she herself took two checks from Mr. Swett and cashed them for $20,700. After reviewing the record as a whole, we decline to...
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