Buntin v. Buntin

673 S.W.3d 593

Karen H. BUNTIN

v.David W. BUNTIN

No. E2022-00017-COA-R3-CV

Court of Appeals of Tennessee, Eastern Section, AT KNOXVILLE.

November 30, 2022 Session

FILED February 27, 2023

Permission to Appeal Denied by Supreme Court: June 28, 2023

John P. Konvalinka and Lawson Konvalinka, Chattanooga, Tennessee, for the appellant, David W. Buntin.

Susie Lodico, Chattanooga, Tennessee, for the appellee, Karen H. Buntin.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which John W. McClarty and Kristi M. Davis, JJ., joined.

Thomas R. Frierson, II, J.

This divorce action involves a marriage of twenty-one years’ duration wherein the husband maintained a significantly greater earning capacity than that of the wife. The trial court ordered the husband to pay transitional alimony to the wife during the time she sought to obtain her Ph.D. and for two years thereafter, or for seven years from the time of the divorce, whichever time period was shorter. The amount of the husband's child support obligation was reduced to zero because he had agreed to pay the minor children's private school tuition. Furthermore, the trial court's net division of the parties’ marital assets and liabilities was nearly equal, and the trial court awarded attorney's fees to the wife. The husband has appealed. Discerning no reversible error, we affirm the trial court's judgment in its entirety. We further determine that the wife is entitled to an award of attorney's fees incurred on appeal, and we remand this matter for the trial court's determination concerning the proper amount to be awarded.

I. Factual and Procedural Background

This case originated with the filing of a complaint for divorce by Karen H. Buntin ("Mother") against David W. Buntin ("Father") on September 18, 2020, in the Hamilton County Circuit Court ("trial court"). In the complaint, Mother stated that two sons had been born of the parties’ marriage, R.B. and E.B ("the Children"), who were ages sixteen and fifteen, respectively, at the time of the complaint's filing. Mother averred that the parties had been married since July 8, 2000, and that irreconcilable differences had arisen between them. Mother requested that the trial court grant a divorce; designate her as primary residential parent of the Children; adopt her proposed parenting plan, which suggested co-parenting time for Father on alternating weekends and holidays; equitably divide the marital assets and liabilities; and award to her child support, temporary alimony, permanent alimony, and attorney's fees.

On September 24, 2020, Father filed a motion seeking to modify the statutory injunction concerning marital assets to allow Father to purchase a residence. Father proposed that he would be solely liable for any indebtedness related thereto and attached a purchase and sale contract for a residence on Seven Pines Lane in Chattanooga. The trial court subsequently entered an agreed order authorizing Father to purchase the residence and providing that the funds utilized for the down payment "shall be considered in the final distribution of the marital estate." This order further directed that Father be solely responsible for any debt related to the residence, which liability would be characterized as his separate obligation.

On February 24, 2021, Father filed an answer and counterclaim for divorce. Father requested that the parties be named joint residential parents of the Children and proposed a parenting plan providing equal co-parenting time for each parent. Both parties subsequently filed income and expense statements, and Father filed an itemized list detailing the parties’ assets and liabilities.

On May 20, 2021, the parties entered a written stipulation agreeing to a designation of joint primary residential parents and equal co-parenting time for each party. The parties further stipulated that a divorce decree should be entered pursuant to Tennessee Code Annotated § 36-4-129. The stipulation also assigned values to a majority of their assets and liabilities, as shown on an attached list, and contained an agreement that their personalty had already been equitably distributed. The parties further agreed that Mother's parents would testify that (1) Mother and Father are good parents and (2) Mother's parents had given Mother and Father a total of $25,000.00 per year from the time R.B. began his education at McCallie School ("McCallie") through 2020.

The trial court conducted a bench trial on May 25, 2021, hearing testimony from each party and from Father's employer. On June 3, 2021, Father filed a motion requesting that the trial court enter a final decree declaring the parties divorced in accordance with their stipulation of grounds. Father also asked that the trial court consider Mother's recent unilateral increase in marital debt when allocating such liabilities. Mother objected to entry of the divorce decree, asserting that it would result in her having no means of support. Mother further responded that the items she had charged on the joint credit card were (1) her attorney's fees, which she had requested the court to allocate to Father when the marital estate was distributed, and (2) a bed frame and mattress for one of the parties’ sons.

Pursuant to the trial court's request at the conclusion of trial, each party filed proposed findings of fact and conclusions of law. On August 12, 2021, the trial court entered a memorandum opinion, approving the parties’ stipulations that their marriage was of twenty-one years’ duration, that two children had been born thereof, and that grounds for divorce existed. The parties also had stipulated to a permanent parenting plan ("PPP") affording each party 182.5 days per year with the Children. Therefore, according to the court, the remaining issues for adjudication included only the equitable distribution of marital assets and liabilities; the value of certain assets and liabilities; whether Mother's request for alimony should be granted and, if so, what type and amount should be awarded; and the appropriate amount of child support to be ordered.

Before distributing the parties’ marital assets and liabilities, the trial court made findings concerning each party's credibility. The trial court determined that Mother was "generally" more credible because "her analysis of the overall family economic situation [was] more realistic and practical and focused on the entire family." By contrast, the court found that Father's "view of the facts was focused on himself primarily" and that "[t]his perspective color[ed] his testimony."

The trial court considered the factors enumerated in Tennessee Code Annotated § 36-4-121 concerning an equitable distribution of the parties’ assets. The court noted that the parties had been married for twenty-one years and that while Father enjoyed good health, Mother had endured a cancer diagnosis. Although Mother had recovered well, she was required to monitor her health via "expensive scans." The court also determined that Father's earning capacity was substantially higher than Mother's in that Father's year-to-date earnings would yield an annual income of $360,000.00 to $460,000.00 depending on how Father's earnings were averaged. On this point, the court elaborated:

When variable income is before the Court, it is appropriate for the Court to average the income over a reasonable period of time which time period is consistent with the circumstances of the case. Hayes vs Hayes , No. M201400237COAR3CV, 2015 WL 1450998 (Tenn. Ct. App. March 26, 2015). Generally speaking, averaging the income figures over a short period of time may give an inaccurate reflection of the income available to a party. The Court finds in this situation [Father's] income has steadily increased and increased by significant amounts each year. Therefore, averaging his income over a long period of time does not have the effect of "smoothing out" the fluctuations. Rather, it results in an inaccurate picture of his current financial position. [Father's] taxable income over the last 4 years has been as follows:

2017	$156,043.00
2018	$176,563.00
2019	$255,468.00
2020	$352,237.00
January 1, 2021 - May 8, 2021	$162,912.36
(If this earning trend continues he will earn $464,554.78 in 2021)

Accordingly, the Court will do a one-year average to arrive at his estimated income. In 2021, [Father] earned an average of $38,712.00 per month for four months or a total of $154,848.00. In eight months in 2020, he earned income at the rate of $29,353.08 a month or $234,824.00. Averaging eight months of his 2020 income and four months of his 2021 income results in an average annual income of $389,672.00 or $32,472.00 per month.

The trial court found that although Mother's income had also experienced fluctuations spanning the last few years, they could be "smoothed out" by averaging Mother's income over a longer period of time. The court determined Mother's gross monthly wages to be $1,432.98. Mother had been employed as a teacher since returning to the work force in 2009 after staying home with the Children for several years. According to the trial court, Mother was also pursuing a Ph.D. program that would require five years to complete.

The trial court determined that Father enjoyed greater earning capacity and a greater ability to acquire assets than Mother. Although the court observed that Father was "vastly less thrifty" than Mother, it found that both parties had contributed to the marital estate. The court specifically found that Mother's attention to the home had enabled Father to dedicate his time to his career as a financial advisor and to increase his earnings.

After valuing Father's Range Rover automobile at $30,000.00, the trial court awarded to Father marital assets valued at $561,918.00 while awarding to Mother marital assets valued at $817,181.00. With reference to liabilities, the court directed Father to pay marital debt totaling $60,984.80 and ordered Mother to pay marital liabilities, including the...