Umstot v. Umstot

• Citation: 968 S.W.2d 819
• Parties: Mary Ann UMSTOT, Plaintiff-Counter-Defendant/Appellee, v. Edward Shirer UMSTOT, Defendant-Counter-Plaintiff/Appellant.
• Decision Date: 05 September 1997
• Court: Court of Appeals of Tennessee

Page 819

968 S.W.2d 819

Mary Ann UMSTOT, Plaintiff-Counter-Defendant/Appellee, v. Edward Shirer UMSTOT, Defendant-Counter-Plaintiff/Appellant.

Court of Appeals of Tennessee,

Western Section, at Jackson.

Sept. 5, 1997.

Application for Permission to Appeal

Denied by Supreme Court,

April 20, 1998

Daniel Loyd Taylor, James H. Taylor, III, Memphis, for Appellee.

Hal Gerber, Karen R. Cicala, Memphis, for Appellant.

CRAWFORD, Presiding Judge, W.S.

This is a divorce case. Edward Shirer Umstot (Husband) appeals the order of the trial court awarding a divorce, alimony in solido, and child support to Mary Ann Umstot (Wife).

The parties were married on August 16, 1977 and had two children during the marriage. ¹ At the time of the divorce, Wife was 52 years old, and Husband was 53 years old. Husband is in good health, but Wife was recently diagnosed with malignant melanoma. She testified that she has a 40% chance of living another five years.

Wife works for Arlington Developmental Center as a medical technologist with a net monthly income of $2,447.76 and at Methodist Hospital with a net monthly income of $200.00. Wife has a defined benefits retirement plan with the State of Tennessee worth $76,309.00. ² Husband is a research associate for the University of Tennessee-Memphis earning $35,418.96 per year. Husband's net monthly income is $2,271.64, and his retirement benefits are worth $158,563.00. Husband's retirement plan began with a balance of $4,437.00 at the time of the marriage.

The parties owned an unencumbered marital residence. Wife presented expert testimony that the real estate was worth $130,000.00, and Husband presented an expert witness who valued the real estate at $146,571.00. ³ The parties also owned four automobiles, various personal property worth about $13,400.00, two individual retirement accounts each worth $2,715.23, and government savings bonds worth $24,000.00. Each party maintained a separate bank account. Wife inherited an annuity and some General Motors stock during the marriage.

In 1980, Wife had an affair with a co-worker, but she terminated the relationship after one year. Husband testified that Wife was verbally abusive to him, was not supportive of him, and withheld affection and sexual relations from him. In 1995, Husband contacted an ex-girlfriend, Grover Lynn Irving, and reestablished a platonic relationship. Wife testified that Husband and Irving talked on the telephone every day. Husband even informed the parties' children about Irving and told Wife that he loved Irving more than he loved Wife. Husband sent $7,500.00 to Irving and incurred long-distance phone bills of $2,500.00 talking to Irving. Wife asked Husband to end this relationship, but he refused. After Wife told Irving to stop calling the house, Husband purchased a beeper so he and Irving could continue to talk.

On September 22, 1995, Wife filed a complaint for divorce alleging irreconcilable differences and inappropriate marital conduct. On October 9, 1995, Husband filed an answer and a counter-complaint. In the answer, Husband admits irreconcilable differences, but denies that he is guilty of inappropriate marital conduct. In his counter-complaint, Husband agrees that the parties have irreconcilable differences and alleges that Wife is guilty of inappropriate marital conduct. On May 6, 1996, Wife filed an answer that denied she was guilty of inappropriate marital conduct.

On June 20, 1996, the trial court entered a final decree of absolute divorce that awarded the divorce to Wife on the grounds of inappropriate marital conduct. The final decree granted custody of the minor children to Wife with liberal visitation to Husband. Husband was ordered to pay child support of $730.00 per month through May 1997, then to pay $479.00 per month. The trial court divided the marital assets and determined that the increase in value of Husband's retirement benefits was marital property. The trial court awarded Husband's interest in the marital residence, valued at $65,000.00, to Wife as alimony in solido and awarded $2,500.00 as additional alimony in solido for Wife's attorney's fees. Finally, the trial court ordered Husband to pay Wife $1,000.00 in a lump sum as child support to help pay for the extraordinary educational expense of a trip to Europe by one of the parties' daughters.

Husband appeals the judgment of the trial court and presents five issues for review: 1) whether the trial court erred in awarding Wife alimony in solido; 2) whether the trial court erred in awarding Wife additional alimony in solido to pay her attorney's fees; 3) whether the trial court erred in its determination that the increase in the value of Husband's separate property was marital property; 4) whether the trial court erred in deviating from the child support guidelines; and 5) whether the trial court erred in awarding a divorce to Wife only.

Since this case was tried by the 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. T.R.A.P. 13(d).

We will first consider Husband's third issue. Because the valuation of Husband's retirement plan affects the division of the marital property, Husband argues that the trial court erred in its determination that the increase in the value of his retirement plan was marital property. The trial court determined that $4,437.00 of the value of Husband's retirement plan was his separate property and that $154,106.00, which represents the increase in value of the retirement plan during the marriage, was marital property. The trial court awarded both the $4,437.00 and the $154,106.00 to Husband. Husband asserts that the trial court allotted only the original value of the pension at the time of the marriage, $4,437.00, as separate property. He argues that the trial court should have also considered the interest earned on that portion as separate property. He contends that only $131,000.00 of the increase in value is martial property, instead of the full $154,106.00, because $23,106.00 of the interest accumulated on the original amount of $4,437.00 and is therefore separate property. T.C.A. § 36-4-121(b)(1)(B) provides "Marital property" includes income from, and any increase in value during the marriage, of property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation and the value of vested pension, retirement or other fringe benefit rights accrued during the period of the marriage.

T.C.A. § 36-4-121(b)(1)(B) (1996). Marital property includes retirement benefits, both vested and unvested, that accrue during the marriage. Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn.1996). An interest in a retirement benefit plan is marital property subject to division under T.C.A. § 36-4-121(a)(1) (1996). Cohen, 937 S.W.2d at 830.

In Cohen, the Supreme Court reiterated three observations:

1. Only the portion of retirement benefits accrued during the marriage are marital property subject to equitable division.

2. Retirement benefits accrued during the marriage are marital property subject to equitable division even though the non-employee spouse did not contribute to the increase in their value.

3. The value of retirement benefits must be determined at a date as near as possible to the date of the divorce.

Id.

Husband argues that the amount of the retirement benefits that accrued during the marriage should not include the amount that accrued as a result of his separate property. He asks this Court to separate the appreciation of the retirement plan into two income streams: one based only on the separate property amount of $4,437.00 and one based on the contributions made to the retirement plan during the marriage.

In an unreported case, this Court addressed the division of retirement funds:

We believe the trial court abused its discretion in awarding Wife $13,311 instead of half of the total of the parties' retirement accounts accumulated after the marriage. The trial court was obviously influenced by his express finding that "a good portion of [the increase] has been passive income that has accrued since the parties' marriage"; but the "passive" nature of the accrual during the marriage is immaterial. T.C.A. § 36-4-121(b)(1)(B) provides that marital property includes "the value of a vested pension, retirement or other fringe benefit rights accrued during the period of the marriage." (Emphasis Added). This code section does not differentiate between value added by "passive income" and value added by additional contributions during the marriage. The critical determination is whether the value "accrued" during the marriage. In this case, everything in Husband's thrift and profit sharing plan, save the $5,091 in there at the time of the marriage, "accrued" after the marriage.

Franklin v. Franklin, No. 03A01-9410-CV-00364, 1995 WL 371573, at * 2 (Tenn.App. June 21, 1995). We agree with the reasoning of the Franklin Court that the critical determination is whether the value "accrued" during the marriage. The statute is clear that "the value of vested pension, retirement or other fringe benefit rights accrued during the period of the marriage" is marital property. T.C.A. § 36-4-121(b)(1)(B) (1996). In this case, all of Husband's retirement plan, except $4,437.00, accrued during the marriage. The trial court correctly held that $154,106.00 of the retirement plan was marital property.

In his first issue, Husband argues that the trial court erred in awarding alimony in solido to Wife. Husband argues that Wife does not need the award, that he does not have the ability to pay the award, and that the court's perception of the relative fault, which can be considered in an award of alimony, unfairly focused on him. In this case, the trial court awarded...