Wiser v. Wiser
| Decision Date | 25 June 2010 |
| Docket Number | No. M2009–00620–COA–R3–CV.,M2009–00620–COA–R3–CV. |
| Citation | 339 S.W.3d 1 |
| Parties | Regina D. WISERv.Cyrus W. WISER, Jr. |
| Court | Tennessee Court of Appeals |
OPINION TEXT STARTS HERE
Aug. 11, 2010.
Permission to Appeal Denied by
Supreme Court Feb. 16, 2011.
D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the Plaintiff/Appellant, Regina D. Wiser.Brad W. Hornsby and Chris L. Richardson, Murfreesboro, Tennessee, for the Defendant/Appellee, Cyrus W. Wiser, Jr.
This appeal concerns post-divorce modification of alimony and child support. The parties had two children; during the marriage, the wife remained at home and cared for the parties' children. The husband was self-employed through his solely owned company. Ultimately, the parties divorced on stipulated grounds, and the husband was ordered to pay child support. The husband was awarded his business. The trial court awarded two commercial buildings to the wife and ordered the husband to pay the associated mortgage. The husband was ordered to pay alimony until the buildings were paid off, after which the wife's income was to be derived from the buildings. After the divorce, the income of the husband's company increased substantially and the husband refinanced the buildings. Two years after the divorce, the wife filed a petition for modification of alimony and child support. After a trial, the trial court declined to increase the alimony. It granted an increase in the husband's child support obligation to the maximum under the guidelines, but declined to award more than the guideline amount. The trial court also declined to award the wife attorney fees. The wife now appeals. We find that the increase in the income of the husband's company was a substantial and material change in circumstances, and that the decision not to increase alimony was an abuse of discretion, and therefore modify the alimony award. We affirm the trial court's refusal to grant an upward deviation from the guideline amount of child support. We reverse the trial court's denial of the wife's request for attorney fees with respect to child support and alimony, but affirm the denial of attorney fees for the refinancing of the two buildings awarded to the wife.
Plaintiff/Appellant Regina D. Wiser (“Wife”) and Defendant/Appellee Cyrus W. Wiser, Jr. (“Husband”) married in 1982. They had two children, born in 1992 and 1996. The family lived in Murfreesboro, Tennessee.
Husband is a self-employed engineer and businessman. His business activities are conducted through various solely owned limited liability companies registered in Tennessee and Alabama. At the time of trial, Husband's chief enterprise was Wiser Company, LLC (“Wiser Company” or “the Company”). Wiser Company is registered in Tennessee and is the parent company of approximately four out-of-state subsidiaries.1 Between offices in Tennessee and Alabama, Wiser Company employs about one hundred and fifty-five persons. The nature of the Company's business is not clear from the record, but appears to be diverse; it involves various real estate holdings, including unimproved land and commercial buildings. Prior to the parties' divorce, Wiser Company's assets apparently included four commercial buildings (“the buildings”) located in Murfreesboro.2
As the sole owner of Wiser Company, Husband receives all of the profits and bears all of the losses generated by the Company. The success or failure of the Company depends to a large extent on Husband's personal efforts and his relationships with various government officials and business associates.
Wife is a college graduate and interior designer. At some point during the marriage, Wife worked for Wiser Company. However, throughout most of the marriage, she was a homemaker and cared for the parties' children.
During the marriage, Wiser Company's profits, and thus Husband's income, fluctuated greatly, and the Company's holdings apparently included properties that were significantly leveraged. However, the parties' lifestyle was one of some considerable wealth. They lived in a 6,000 square foot house, took numerous vacations, belonged to a country club, and the children attended private schools. Husband's Company furnished him vehicles. The Company had a suite in the Tennessee Titans football stadium, which Husband used for business development.
On May 5, 2004, Wife filed a complaint for divorce in the Rutherford County Circuit Court (“trial court”). Husband counterclaimed for divorce. Ultimately, the parties stipulated to the grounds for divorce pursuant to Tennessee Code Annotated § 36–4–129.3 They agreed on a parenting plan with parenting time evenly divided, and agreed that Husband would pay Wife $1498 per month in child support. They could not resolve the division of the marital estate and the issue of alimony.
In June 2005, the trial court conducted a two day bench trial on the remaining issues. The appellate record does not contain a transcript of the divorce proceedings. In the divorce trial, the parties submitted into evidence their joint tax returns for 1999 through 2003. The tax returns showed that Wiser Company netted profits of $366,881 in 1999; losses of $197,509 in 2000; profits of $69,895 in 2001; losses of $160,737 in 2002; and profits of $536,781 in 2003. For reasons not clear in the record, the parties' 2004 tax return was not entered into evidence at the trial. Husband apparently testified at trial that he drew an advance of $16,000 per month on Wiser Company's annual earnings and that Wiser Company was experiencing financial difficulty at the time. At the conclusion of the trial, the trial court took the case under advisement.
On July 7, 2005, the trial court issued an oral ruling. In its ruling, the trial court commented that the parties had lived “a very lavish lifestyle” but did so on borrowed money. In light of Wife's prolonged absence from the workforce, the trial court found that she was in need of long-term support. The trial court found that Husband was capable of paying Wife support but it grappled with how to structure long-term support considering the uneven performance of Wiser Company.
The trial court observed that Wiser Company is “a personal business ... based solely upon [Husband's] efforts,” and concluded that it was not feasible to sell the Company to facilitate division of the marital estate. It described the Company's financial situation as “somewhat of a mess,” and noted that the financial information provided to the trial court was some eighteen months out of date because no 2004 or 2005 financial statements were entered into evidence. The trial court found that Wiser Company was overall profitable and, from 1999 to 2003, produced an average annual profit of $123,062. However, the Company's “up-and-down” performance presented the trial court with “a problem with trying to come up with long-term alimony.”
In its division of marital property, the trial court divided the parties' house, stock, and bank accounts between them. It awarded the Company to Husband virtually in toto and awarded him most of its assets as well. The Company's four commercial buildings in Murfreesboro would be held jointly by Husband and Wife until the mortgage was paid, which was projected to be in August 2017, approximately twelve years' time. Husband was ordered to pay the $923,000 debt on the buildings. After payoff of the debt in 2017, Wife would take title to two of the buildings, which would generate income for her support. In the meantime, until Wife could begin receiving income from the buildings, Husband was ordered to pay Wife monthly alimony 4 in the following amounts: $6000 for four years, $5000 for the next four years, and $4000 for the final four years.5 After that, the alimony was scheduled to end and the two commercial buildings would be Wife's primary source of income.
On August 5, 2005, the trial court entered a written final decree of divorce consistent with its oral ruling. The final divorce decree was later amended to require Wife to participate in refinancing the buildings if Husband obtained more favorable financing, provided that the refinancing did not “require [Wife] to become liable for more indebtedness than she otherwise would be at that time.”
Thereafter, Husband obtained proposals from various financial institutions to refinance the buildings. He forwarded these proposals to Wife. To assist her in the refinancing process, Wife sought legal counsel. Because she believed that Husband's various refinancing proposals would increase the total debt secured by the buildings, Wife refused to consent. When the parties were unable to agree, Husband filed a petition with the trial court to compel Wife's cooperation with refinancing the buildings.6 In response, Wife sought dismissal of the petition as well as an award of attorney fees incurred in defending against it.
On June 7, 2007, while Husband's petition on refinancing the buildings was pending, Wife filed a petition to increase alimony and child support. In her petition, Wife alleged a material and substantial change in circumstances justifying an increase in alimony. She also asserted that there had been a more than fifteen percent increase in the amount of child support required to be paid under the Tennessee Child Support Guidelines (“Guidelines”). Wife also sought an award of attorney fees.7
Meanwhile, the parties reached an agreement on refinancing the buildings. On January 29, 2008, the trial court entered an order incorporating the terms of the parties' agreement.8 The agreed order explicitly reserved, for a later hearing, adjudication of Wife's claim for attorney fees incurred in connection with Husband's petition to compel cooperation in the refinancing.
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Pierce v. Pierce
...as authorizing a trial court to award attorney's fees incurred in an action to increase child support. See Wiser v. Wiser, 339 S.W.3d 1, 20 (Tenn. Ct. App. 2010); Huntley v. Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001) (interpreting the statute as giving courts authority to award fees ......
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Andrews v. Andrews
...standard of living expected to be available to the other spouse.” T.C.A. § 36–5–121(d)(2), (e)(1) (2005); accord Wiser v. Wiser, 339 S.W.3d 1, 17 (Tenn.Ct.App.2010). An award of rehabilitative alimony may correspond with the disadvantaged spouse's acquisition of additional education or trai......
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...the alimony award "bears the burden of proving that a substantial and material change in circumstances has occurred." Wiser v. Wiser, 339 S.W.3d 1, 12 (Tenn. Ct. App. 2010) (citing Freeman v. Freeman, 147 S.W.3d 234, 239 (Tenn. Ct. App. 2003)). By contrast, rehabilitative alimony is short-t......
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