Young v. Young

• Decision Date: 13 August 1997
• Citation: 971 S.W.2d 386
• Parties: William Towne YOUNG, Plaintiff/Appellee, v. Martha McCool YOUNG, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 386

971 S.W.2d 386

William Towne YOUNG, Plaintiff/Appellee, v. Martha McCool YOUNG, Defendant/Appellant.

Court of Appeals of Tennessee Western Section, at Nashville.

Aug. 13, 1997.

Application for Permission to Appeal

Denied by Supreme Court

May 11, 1998.

J. Russell Heldman, Franklin, for Appellant.

Thomas C. Binkley, Jeffrey Zager, Trabue, Sturdivant & DeWitt, Nashville, for Appellee.

HIGHERS, Judge.

In this divorce action, Martha McCool Young ("Wife") was awarded a divorce from William Towne Young ("Husband") on the grounds of adultery. Pursuant to a consent decree of divorce, custody of the parties' minor child was awarded to Wife. Wife agreed to obtain medical insurance coverage for the child through her employer, and the parties agreed to divide equally the medical expenses of the child which were not covered by insurance. Wife was awarded an IRA account valued at $29,000 which was titled in Husband's name. In exchange for Wife's receipt of the IRA account, Husband was forgiven any child and spousal support arrearage existing through June 30, 1995, and Wife relinquished any claim she might have against Husband for dissipation of the marital assets on any person other than Wife. Wife was further awarded the Memphis residence and the automobile in her possession. Husband was awarded the Murfreesboro residence, all interest in the Pan American Airlines retirement income plan, the Stones River Country Club membership, and the automobile in his possession. Each party agreed to pay their own attorney fees. After the parties were unable to come to an agreement as to alimony, child support, and the amount of life insurance that Husband would provide for the benefit of Wife and child, the trial court ordered Husband to pay Wife $1,000 per month in rehabilitative alimony for seven years, $1099 per month in child support, and $9,000 in accrued alimony. Husband was ordered to purchase and maintain a $50,000 life insurance policy for the benefit of Wife and a $100,000 life insurance policy for the benefit of the parties' minor child. Husband was further ordered to supply Wife a statement of Husband's total income at the end of each quarter or three-month period, and in the event that Husband's income increases to more than $7,500 per month, Wife may petition the court for an increased award of alimony. Wife appeals the judgment of the trial court arguing that the trial judge erred in declining to recuse himself, in awarding her $1,000 per month in rehabilitative alimony for seven years, in admitting into evidence a Florida child support order, and in determining the amount of life insurance that Husband was to purchase and maintain in order to secure Wife's award of alimony and child support. For the reasons stated hereafter, we affirm the judgment of the court below in all respects except as to Wife's award of alimony and the amount of insurance that Husband shall purchase and maintain for the benefit of Wife.

FACTS

After a twenty-seven and a half year marriage, the parties entered into a consent decree of divorce on the stipulated grounds of Husband's adultery. At the time of trial, Husband was fifty-six years of age, and Wife was fifty-two.

Two sons, who are presently beyond the age of majority, and one daughter, a minor child born on May 28, 1990, were born of the parties' marriage. Husband fathered one child outside of wedlock during the parties' marriage for whom Husband is currently paying $500 per month in child support. The child, age eight, is living in Florida with her mother.

Throughout the parties' marriage, Husband worked in the aviation industry. From 1982 through 1989, Husband was President of Air Tech Services, a company located at the Miami airport which overhauls commercial aircraft. While working for Air Tech Services, Husband participated in marketing and sales and served as a manager. During the period between 1986 and 1989, Husband earned $140,000 per year in salary and bonuses.

In 1990, Husband went to work for Greenwich Air Services, a company involved in the maintenance, repair and overhaul of aircraft engines and aircraft components. Husband was the vice-president of marketing and sales for the company and earned an annual salary of $80,000. Husband left Greenwich Air Services at the end of 1990.

Following his departure from Greenwich Air Services, Husband moved to Smyrna, Tennessee and became the President of Cross Continental Aircraft Services, a commercial aircraft overhaul company. Responsible for marketing and sales activities, Husband served as President of Cross Continental Aircraft Services from the end of 1990 through 1993. Husband's annual base salary in 1990 and 1991 was $100,000. In 1992 and 1993 Husband earned $80,000 as an annual base salary. After earning $84,350 in 1993, Husband left Cross Continental Aircraft Services.

In 1994, Husband began work for F.F.V. Aerotech, a company in the Nashville airport that repairs and overhauls commuter aircraft. As the vice-president of marketing and operations, Husband made a base salary of $80,000 per year. On December 14, 1994, Husband was laid off from his job with F.F.V. Aerotech. Husband was paid an additional two months salary as severance pay.

In 1995, Husband started his own consulting business, Towne Young Associates. In November 1995, Husband entered into a consulting contract with Telecel whereby Telecel paid Husband $15,000 per month for five months. After subtracting approximately $5,000 per month in job expenses which Husband was obligated to pay, Husband received a net, pre-tax income of $10,000 per month from Telecel. On April 26, 1996, Husband entered into a job extension agreement with Telecel which extended his contract through the end of July 1996. Under the extension agreement, Telecel paid Husband a net, pre-tax amount of $7500 per month, and Telecel paid Husband's job expenses. At trial on June 18, 1996, Husband testified that his contract with Telecel may be extended a month or more beyond July 1996.

After his contract with Telecel ends, Husband planned to seek further employment in the aviation industry. He testified that his current earning capacity was $60,000.

In December 1995, Husband married Judy Hagerman. Hagerman earns approximately $12,000 per year. Husband and Hagerman's 1995 joint tax return revealed a joint income of $61,500. With Hagerman's income contribution of $11,854, Husband's 1995 reported taxable income was approximately $50,000.

Having worked for Pan American Airlines for seventeen years, Husband began receiving $347 per month in retirement benefits from Pan American Airlines sometime in 1996.

Wife has worked as a first-grade teacher for twelve years. Wife currently teaches first-grade children at a private school in Memphis, Tennessee, earning a net salary of approximately $1,500 per month. Wife stated that she was not pursuing a master's degree in education because her salary would not increase proportionately with the amount of time and money that would be required for her to attain a master's degree.

Wife testified that she lives in a house over fifty years old which requires additional maintenance, that she does not have a clothes dryer in her house, and that her car has 117,000 miles on it and is in need of $1,400 worth of work on the transmission. Wife testified that her house payment is $943 per month and that she has a total of $4,595 in monthly expenses.

Since July 1995, Husband testified that he has visited the parties' minor child once every six weeks. Since December 1994, Wife stated that Husband has spent seventeen days with the child.

During the trial of this matter, the trial court allowed Husband to file as a late-filed exhibit, a certified copy of the Florida judgment, ordering Husband to pay $500 per month for his child born out of wedlock.

Based on the foregoing facts, the trial court found that Wife's statement of income, needs and expenses is not realistic. The trial court also found that both parties are in good health and in good mental condition and Husband's earning capacity is almost three times that of the Wife's earning capacity.

LAW

The issues before this Court are as follows:

1) Whether the trial judge erred in declining to recuse himself;

2) Whether the trial judge erred in awarding Wife rehabilitative alimony in the amount of $1,000.00 per month for seven years;

3) Whether the trial judge erred in admitting a certified copy of a Florida child support order into evidence as a late-filed exhibit;

4) Whether the trial judge erred in deducting $500 per month, the amount of child support Husband currently pays for the support of another child born outside the parties' marriage, from Husband's gross income for purposes of determining the amount of child support Husband owes Wife;

5) Whether the trial judge erred in ordering Husband to purchase and maintain $50,000 worth of life insurance in order to secure Wife's award of alimony and $100,000 worth of life insurance in order to secure Husband's child support payment;

6) Whether the trial judge erred in denying Wife's motion to dismiss or stay Husband's post-judgment petition to modify child support and alimony pending this appeal of the final judgment;

7) Whether Wife is entitled to an award of attorney fees on appeal.

It is within a judge's discretion whether to sit or not to sit on a particular case. In re Cameron, 126 Tenn. 614, 151 S.W. 64, 74 (1912); State of Tenn. ex rel Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d 489, 492 (1968); Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn.Ct.App.1989); Wiseman v. Spaulding, 573 S.W.2d 490, 493 (Tenn.Ct.App.1978); Caruthers v. State, 814 S.W.2d 64, 67 (Tenn.Cr.App.1991). We will not interfere with the exercise of this discretion unless a clear abuse appears on the face of the record. Caruthers, 814 S.W.2d at 67.

The judicial ethics committee faced an issue similar to the issue in the case at bar. In Judicial...