Wix v Wix
| Decision Date | 07 March 2001 |
| Docket Number | 00-00230 |
| Parties | ANTHONY GALE WIX v. CATHY MARIE WIXIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Lewis County: No. 3862
This appeal involves the dissolution of an eighteen-year marriage by the Chancery Court for Lewis County. The trial court awarded the wife the divorce after concluding that the husband's continuing extramarital affair amounted to inappropriate marital conduct. To protect the "moral integrity of the marital relationship," the trial court granted the wife sole custody of the parties' two minor children and declined to grant the husband any visitation rights. In addition, the trial court ordered the husband to pay more than the minimum child support required by the child support guidelines because he was willfully underemployed and because he would not be exercising standard visitation with the children. The husband asserts on this appeal that the trial court's decisions with regard to custody and visitation, child support, and the division of the marital estate lack evidentiary support. We have determined that the trial court's disapproval of the husband's extramarital affair inappropriately colored its decisions regarding visitation and child support. Accordingly, we affirm the manner in which the trial court divided the parties' marital estate and reverse the trial court's visitation and child support awards.
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.
Christopher L. Dunn, Columbia, Tennessee, for the appellant, Anthony Gale Wix.
Michael E. Spitzer, Hohenwald, Tennessee, for the appellee, Cathy Marie Wix.
OPINIONCathy Marie Wix and Anthony Gale Wix were married in June 1980 in Georgia. Ms. Wix was sixteen-years old and had completed the tenth grade. Mr. Wix was a twenty-eight-year-old high school graduate who worked as a self-employed lumberman. Mr. Wix was also a widower, and this marriage was his second. The parties had three children. The oldest was born in April 1981; the middle child in August 1987; and the youngest in November 1988.
Ms. Wix later earned her GED. Except for a four or five year period early in the marriage when she worked as a seamstress, Ms. Wix did not work outside the home because Mr. Wix desired her to remain at home to care for their children. Ms. Wix was diagnosed with breast cancer in 1995. Surgical intervention was ruled out because the cancer was too advanced. Accordingly, Ms. Wix received intensive chemotherapy from May 1995 through October 1995 followed by high-dose radiation treatments. These treatments caused Ms. Wix's cancer to go into remission; however, their effects rendered her essentially unable to work.
Mr. Wix's logging business began to founder in 1997. He incurred substantial debt in late 1997 or early 1998 when he purchased additional heavy equipment in the hope that he could reverse his failing financial fortunes. In August 1998, while on a business trip to Illinois, Mr. Wix began an extramarital affair with Elizabeth McClain, the wife of a fellow lumberman. When Mr. Wix returned home on August 30, 1998, he told Ms. Wix that he was in love with somebody else and that he wanted a divorce. The parties separated in September 1998, and on November 5, 1998, Mr. Wix filed a divorce complaint in the Chancery Court for Lewis County seeking a divorce on the grounds of irreconcilable differences and inappropriate marital conduct. He also requested joint custody of the parties' children. Ms. Wix counterclaimed for divorce on the ground of inappropriate marital conduct. She sought sole custody of the children but requested that Mr. Wix be granted "such visitation as the Court deems necessary in the best interest of the children." By March 1999 Ms. Wix had become romantically involved Calvin Sandy who later moved into the marital home with Ms. Wix and the children.
Ms. Wix moved for pendente lite support on September 20, 1999. At a hearing conducted one week later, the parties announced that they had agreed that Ms. Wix was entitled to the divorce on the ground of inappropriate marital conduct and that two tracts of jointly owned property should be sold. All other disputes were reserved for further hearing at a later time. On November 9, 1999, the trial court entered an order awarding Ms. Wix a divorce on the ground of inappropriate marital conduct.
The trial on the remaining issues began on November 10, 1999, before another trial judge.1 The parties' lawyers made it clear from the outset that this hearing would focus primarily on disputes regarding the division of the marital estate and spousal support. They informed the trial court that their clients essentially agreed that Ms. Wix should have custody of the two minor children2 and that Mr. Wix should have visitation. Mr. Wix's testimony regarding marital and business finances consumed the first day of the hearing. Before adjourning the hearing for the day, the trial court announced that it wanted to "give the parties and their lawyers some guidance." First, the court observed that "the non-custodial parent should have standard visitation and a liberal amount of time in the summer and alternate holidays, and that the children should have a good relationship with the visiting parent." However, the court also warned that Then, addressing Mr. Wix's cohabitation with Ms. McClain, the court commented:
if Mr. Wix and Ms. McClain are inclined to get married, it would behoove them to do that, otherwise if there is a final hearing and I have to come down with a ruling, I might have to say some things and put some restrictions on people that they otherwise may [not] have if there is an agreement.3
Because the hearing would not resume for two weeks, the attorneys sought the trial court's guidance about their clients' live-in paramours. The trial court first observed:
But I just don't understand what people - - what they think. Putting children in front of other men and women, and have them spend the night. No wonder this country is going down the tubes.
***
There is [sic] churches all around this courthouse, just flooding this town and this county. Isn't the message getting out what is good and bad, and what's right and wrong? I don't know. What do people have in their ears?
Thereafter, with regard to Ms. Wix, the trial court stated that "[u]ntil she marries somebody, she's permanently enjoined from having people live with her; men that are non-related." With regard to Mr. Wix, the court stated:
When the children are with Mr. Wix, Ms. McClain needs to hit the road. If she wants to go see Mr. McClain and apologize for what she did to him, and try to seize some of that time to reconcile a terrible situation, that might be a good thing for her to do. I don't know what she's going to do. But she's going to have to - - She's got to sleep elsewhere. And the children, hopefully their minds aren't seared with impropriety; that they'll be able to grow up and when they are tempted with these vices, they will choose the higher road.
And I just think that's the duty of the [c]ourt. Until the legislature or the Tennessee Supreme Court says otherwise, morals still have a place in the law. There wouldn't be any law if it weren't for morals. It came out of the Ten Commandments actually. That's where it all started. But things sort of went downhill after that.
Not surprisingly, Mr. Wix and Ms. McClain married before the trial resumed on November 24, 1999.4 The testimony during this hearing focused on issues relating to the division of the marital estate and Ms. Wix's request for spousal support. Neither party presented the sort of evidence generally associated with custody and visitation disputes. Both parties apparently assumed that the custody and visitation issues were settled in light of the trial court's comments at the conclusion of the November 10, 1999 hearing indicating that Ms. Wix would receive custody of the children and that Mr. Wix would be given defined visitation rights. During her testimony, Ms. Wix agreed that the children loved Mr. Wix and that he loved them. She also agreed that the current visitation arrangements had been working and that awarding her custody and giving Mr. Wix visitation would work.
At the conclusion of the proof, the trial court awarded Ms. Wix sole custody of the minor children and refused to grant Mr. Wix visitation rights of any sort. The trial court also awarded Ms. Wix more child support than required by the child support guidelines because Mr. Wix had no visitation rights. After dividing the marital estate and apportioning the marital debts, the trial court ordered Mr. Wix to pay Ms. Wix $500 per month in spousal support and to pay her an additional $5,975 to defray her legal expenses. The trial court's statements from the bench reflect that each of these decisions was colored by the court's moral disapprobation of Mr. Wix's conduct. On this appeal, Mr. Wix takes issue with the trial court's refusal to grant him defined visitation rights, the calculation of his child support, and the manner in which the trial court divided the marital property.
As a preliminary matter, we take up the trial court's invocation of the maxim "false in one, false in all" to discount Mr. Wix's "testimony . . . as being unreliable and without credibility." While appellate courts routinely defer to a trial court's determinations regarding the credibility of witnesses appearing before them, Long v. Tri-Con Indus., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999); Doe A v. Coffee County Bd. of Educ., 925 S.W.2d 534, 537 (...
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