Wade v. Wade

• Decision Date: 21 July 1994
• Parties: Kenneth R. WADE, Plaintiff/Appellant, v. Georgene S. WADE, Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 702

897 S.W.2d 702

Kenneth R. WADE, Plaintiff/Appellant, v. Georgene S. WADE, Defendant/Appellee.

Court of Appeals of Tennessee,

Eastern Section.

July 21, 1994.

Order on Denial of Rehearing

Dec. 5, 1994.

Permission to Appeal Denied by

Supreme Court April 3, 1995.

Charles H. Child, Wm. T. Magill, Layman, O'Connor, Petty & Child, Knoxville, for appellant.

L. Caesar Stair, III, Bernstein, Stair & McAdams, Knoxville, for appellee.

OPINION

LEWIS, Judge.

This appeal is by plaintiff Kenneth R. Wade (Husband) from the trial court's final judgment of divorce and the trial court's order granting defendant Georgene S. Wade (Wife) temporary support during the appeal. Husband appeals from so much of the final judgment of divorce as awards Wife certain property as a division of the marital estate and awards Wife "as alimony the sum of $15,000.00 to be applied to her attorney fees to be paid by the husband to her attorney of record." Husband presents the following issues for our review:

I. [Whether] the evidence preponderates against the trial court's classification and subsequent division of the marital estate.

A. [Whether] the trial court erred in holding that appreciation of stock owned by the Husband prior to the marriage was marital property.

B. [Whether] the trial court erred in classifying the Victoria Mall Partnership, Kelco/Waco and the 4+ acres of Emert's Cove as marital property for purposes of the property division.

II. [Whether] the trial court erred in requiring the Husband to pay the Wife alimony to be applied to her attorney's fees.

III. Whether the trial court erred in awarding Mrs. Wade alimony pendente lite pending the appeal.

IV. Whether Mrs. Wade is entitled to full interest on assets awarded to her as alimony when she has been receiving payments in lieu of her obtaining these assets.

Wife presents two additional issues for our review:

I. [Whether] the trial court erred in ordering a grossly inequitable division of the marital estate in favor of Husband;

II. [Whether] the trial court erred in failing to award Wife rehabilitative alimony.

I. FACTS

The pertinent facts are as follows. These parties were married for thirteen years, from 1979 to 1992. This marriage was the second for each of the parties. Husband had a daughter, Katherine Alexis Wade, who was five years old at the time the parties married. Wife had a son, Jay Ray Stevens, who was almost seven at the time the parties married. Both children lived with the parties throughout the marriage.

During their marriage, the parties first lived in Kingsport, Tennessee, then moved to Manila, Philippines, then moved to Sevierville, Tennessee, and finally moved to Knoxville, Tennessee. Both Husband and Wife worked throughout the marriage.

When the parties married in 1979, Husband was employed by Mason-Dixon Truck Lines in Kingsport and earned approximately $22,000.00 per year. Wife was living in Knoxville prior to the marriage and had completed all of her course work for her doctorate in educational administration and supervision. Wife moved to Kingsport when the parties married and shortly thereafter was employed by the Tri-Cities State Technical Institute as coordinator of public relations at a salary of $16,000.00 per year.

When the parties married, Husband owned a home and an adjacent lot at 108 Leslie Court in Kingsport. When Husband sold this home he made a profit of approximately $64,000.00, which he placed in a Sevier County Bank account in his sole name. Husband also owned a quarter interest in two acres in Emert's Cove in Sevier County. He owned some stocks and municipal bonds, and as of the date of the marriage, he owed his father approximately $32,688.00.

Wife, at the time of the parties' marriage, had approximately $5,000.00 to $10,000.00 excess from the sale of her home in Knoxville. She had used part of the proceeds of the sale to pay for her education. She also owned furniture and household goods.

Approximately two years after the marriage, Husband realized he did not have a secure future with Mason-Dixon due to the company's financial problems. ¹ In 1981, Wife was offered a job in the Philippines in her field, international education. The parties agreed that they would move to the Philippines and allow Wife to pursue her career, because they would still have Husband's inheritance for their retirement years.

In May 1981, Wife accepted the position of Professional Development Specialist at the International School in Manila, Philippines. The position initially paid $20,000.00, but Wife was later promoted to Director of Curriculum and Instruction and by 1985 was earning $26,000.00 to $27,000.00. The school also provided the parties with a home, electricity, and free tuition for their children at the school.

Husband did not work the first six months they lived in Manila; however, after six months he obtained a position with Hospital Corporation of America (HCA). He initially earned only $500.00, per month, but by August 1982 his earnings had increased to $33,000.00 per year. In his last year at HCA, 1985-1986, Husband earned approximately $42,000.00 to $43,000.00 as a consultant.

Furthermore, while the parties resided in Manila, two of Husband's brothers' children lived with them for an extended period, in addition to their own children. One nephew, Zachary, lived with them for six months, and one niece, Holly, lived with them for an entire school year. Also in addition to her other duties and responsibilities while in the Philippines, Wife devoted time to purchasing furniture and other household goods from all over the Far East.

In 1986, Wife was offered a position in Katmandu as head of the Lincoln School, but Husband wanted to return to Tennessee. Through Husband's brother, Gary Wade, Wife was offered the position of head of the Greenbriar Academy, a small, private school in Sevierville. As a result, Wife gave up her career in international education and returned to Sevierville with her son Jay in the early summer of 1986. Alexis followed shortly thereafter. Husband stayed in the Philippines, however, until late December 1986. Both children attended Greenbriar Academy during the 1986-87 school year. Because of Wife's position with the school, neither child was required to pay tuition.

Wife's career as headmistress of Greenbriar Academy was short-lived. The school had been experiencing difficulties before Wife's employment, but she was told that at least fifty students would be enrolled during the 1986-87 school year. However, the school only enrolled thirty students during the school year and was $13,000.00 in debt. Wife did eliminate the $13,000.00 debt, but also spent a vast amount of money on the school and its students. Furthermore, Wife testified she was paid only $2,000.00 or $3,000.00 for the 1986-87 school year, rather than the $20,000.00 she had first expected.

While Wife was running Greenbriar Academy, she was also in charge of renovating 121 Joy Street, a residence the parties had purchased from Husband's brother, Gary, and his cousin. This home was directly across the street from Husband's parents and next door to his brother, Sid Wade, in Sevierville. Wife testified that she was at the construction site every day. She further testified that she swept up after the builders, paid the suppliers, and selected, purchased, and decorated everything for the house. The evidence is abundant that she managed the entire remodeling of the home at 121 Joy Street. After Husband returned from the Philippines in late December 1986, the parties and the children moved into the 121 Joy Street residence.

Also after Husband returned, he entered into a business venture with his brother Gary on a fifty-fifty basis. This venture was a convenience store/gasoline business known as Kelco/Waco. Wife did not want Husband to go into business with his brother, and she never signed any of the loans for the financing of Kelco/Waco. Husband's only cash investment in the business was $1,000.00, which came from "his" Sevier County Bank account. Husband earned $40,000.00 per year for the first three years of his employment. At Wife's insistence, Husband asked for and received a pay increase in 1990 to $50,000.00. At the time of the trial in 1992, Husband was earning $55,000.00 per year, and the company also provided him with an automobile, gas, insurance, maintenance and repairs, and medical insurance.

Wife alleges that she supported and helped Husband in the business. She specifically alleges she answered the phone, helped hold buckets while Husband emptied the coins at the car washes, wrapped the coins, went to oil marketeer meetings, washed out car wash bays, read trade magazines, went to food shows, and worked in one convenience store making hamburgers. She further alleges she learned all about the business and offered suggestions to Husband. Based on the record before us, the evidence presented at trial supports Wife's allegations.

At the end of the 1987 school year, Wife did not have a job and had no opportunity for employment in her field of education administration in Sevierville. On 19 October 1987, the day of the "Wall Street crash", Wife was employed by Merrill Lynch as a financial consultant, earning $24,000.00 per year. Wife subsequently passed the Series 7 test and was licensed as a financial consultant. Moreover, through a two-year home study program, she became a certified financial planner.

While Wife was employed at Merrill Lynch, she persuaded Husband to open a business account for Kelco/Waco at Merrill Lynch; however, Gary, Husband's brother and co-venturer, refused to sign the documents to open the account. The business earned approximately $10,000.00 in interest during the first year of the account. The business account at Merrill Lynch was complicated, and Wife spent a lot of time with Kelco/Waco's bookkeeping and working out problems with the account. Wife testified that she monitored the Kelco/Waco...