Preview:

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
OCTOBER 17, 2003 Session PAGE J. FARNSWORTH v. SIDNEY W. FARNSWORTH, III
Direct Appeal from the Chancery Court for Shelby County No. D30748-III D. J. Alissandratos, Chancellor

No. W2002-01536-COA-R3-CV - Filed February 9, 2004

This case involves the property of a divorced couple and the award of attorney's fees to the former wife. For the following reasons, we vacate the decision of the trial court and remand for further proceedings consistent with this opinion.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S., and DAVID R. FARMER , J., joined. Aubrey L. Brown, Jr., Memphis, TN, for Appellant Kimbrough B. Mullins, Kay Farese Turner, Memphis, TN, for Appellee OPINION Facts and Procedural History Sidney W. Farnsworth, III ("Husband") and Page J. Farnsworth ("Wife") were married in 1983. The two lived in a house ("the Humes residence") in Memphis in which Husband held equity and owned before the marriage. At the time, Husband worked as an insurance company underwriter, and Wife was, and continues to be, a speech pathologist. As an underwriter, Husband's income was approximately $30,000 per year. Subsequently, Husband decided he wished to change vocations and chose to attend law school to become an attorney, a decision Wife supported. In 1985, Husband and Wife moved to Nashville so that Husband could attend Vanderbilt University to earn his law degree. While Husband attended law school, the parties rented their house in Memphis, a task for which Wife assumed most of the responsibility. In addition, Wife also handled the renting of the parties' upstairs as an apartment in their Nashville home in order to pay for part of the Nashville

home's rent. Wife performed the household chores, providing Husband with time and energy for his studies. Wife also worked two jobs in the speech pathology field to ensure the parties had enough income to support themselves. While in law school, Husband worked as a law clerk one summer and another summer worked for an insurance firm. Husband completed law school at Vanderbilt and graduated in 1988. Upon graduating, the parties moved back to Memphis and resumed living in the Humes residence where they continued to reside until separating in 1999. The parties returned to Memphis where each worked in their respective fields, with Wife working as a speech pathologist and Husband attaining employment at the law firm, Armstrong, Allen, PLC, and eventually became a member of that firm. Aside from periodic increases, Wife's maximum earning capacity is approximately $47,000 per annum, and Husband's current earning capacity is approximately $100,000 per annum.1 As for the parties' separate property, the evidence at trial showed a sizable disparity. While Wife testified she held separate property mostly in the form of jewelry valued at approximately $20,000, Husband admitted to holding an account in Salomon Smith Barney of assets worth almost $300,000, which he received as a gift from his mother. The parties agreed that the Humes residence held a fair market value of $90,000. In addition, the parties had accumulated over $300,000 in marital property. Finally, the parties had incurred debts from credit cards, a second mortgage on their home, and various fees for attorneys and the guardian ad litem for this cause. In July 1999, Wife commenced this divorce action alleging grounds of irreconcilable differences and later amending her complaint to include fault grounds of inappropriate marital conduct. Husband answered and filed a counter-complaint for divorce in October 2000. A three-day trial was held in the Shelby County Chancery Court in February 2002, after which the trial court granted the parties a divorce,2 ordered a division of the marital property in a 60/40 split for the Wife and Husband respectively,3 and allocated most of the parties' marital debt to the Husband.4 Additionally, the trial court prorated the guardian ad litem's fees and ordered Husband to pay all of Wife's attorney's fees. Because Wife had not received any payments for her attorney's fees, she moved the court to set payments on this award, and the court below set the amount of Husband's monthly payments, adjusting the amount to account for the interest and additional fees accrued since
1

Armstrong, Allen, PLC, utilizes a point system for determining how much income each member receives. Although there was testimony that Husband's income was about to be reduced by Armstrong Allen due to Husband's diminished productivity, the trial court below found, and this Court has no reason to disagree, that Husband's earning capacity per annum is $100,000.
2 3

The parties stipulated the grounds of divorce.

The Court below specified that a sum of $10,000 of W ife's marital property was to be used to purchase a more modern, safer car in the interests of the parties' minor child, and that W ife was to use her portion of the equity of the Humes residence towards the purchase of a new home. The trial court also addressed issues concerning the parties' minor child, however, those issues are not presented to this Court on appeal.
4

-2-

the final divorce decree. Husband timely appealed from the final divorce decree and presents the following issues for our review: I.. The trial court erred in its property division because, as a result of the allocation of marital debt, the de facto result of the property division resulted in an inequitable disparity; The trial court abused its discretion when it awarded Wife all of her attorney's fees; and In the alternative, the trial court erred when it modified the amount of attorney's fees owed to Wife in its order to set payments when such modification was not pursuant to the procedure of Rules 59 or 60 of the Tennessee Rules of Civil Procedure.

II.

III.

Wife presents the following additional issue for this Court's review: IV. Husband should be ordered to pay Wife's attorney's fees from this appeal.

For the following reasons, this Court vacates the decision of the trial court and remands this cause for further proceedings consistent with this opinion. Standard of Review Our review of a trial court's marital property division is de novo upon the record with a presumption of correctness accorded to the trial court's findings of fact. Tenn. R. Civ. P. 13(d); Dellinger v. Dellinger, 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997) (citing Haas v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993)). We are mindful that trial courts are given wide discretion by appellate courts for the manner in which they divide marital property, and, therefore, such divisions are given great weight by appellate courts on appeal. Dellinger, 958 S.W.2d at 780 (citing Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)). Additionally, the award of attorney's fees in a divorce action is within the discretion of the trial court and appellate courts will not interfere with such awards unless there is a clear showing of an abuse of that discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995) (citing Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct. App. 1992); Crouch v. Crouch, 385 S.W.2d 288, 293 (Tenn. Ct. App. 1964)). Finally, all questions of law warrant a de novo review by this Court with no presumption of correctness given to the trial court. Alford v. Alford, No. E2001-02361-SC-R11-CV, 2003 Tenn. LEXIS 1046, at *5. (Tenn. Nov. 6, 2003) (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).

-3-

Property and Debt Division Husband first argues that the trial court erred when it divided the marital estate, awarding Wife 60% and Husband 40% of the property. Specifically, Husband argues that the trial court created an inequitable disparity in this division when the allocation of the marital debt is considered. When a trial court divides the marital property of a former husband and wife, it must consider certain factors in making its division as required by Tenn. Code Ann.

Download Farnsw.pdf

Tennessee Law