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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
On-Brief March 31, 2002 SANDRA K. HOUSTON v. VIRTY HOUSTON
A Direct Appeal from the Chancery Court for Madison County No. 57653 The Honorable Joe C. Morris, Chancellor

No. W2002-02022-COA-R3-CV - Filed May 29, 2003

Wife filed complaint seeking absolute divorce from Husband and primary custody of couple's minor children. Wife also filed motion for child support pendente lite and motion for temporary restraining order. Husband filed counterclaim for divorce on grounds of inappropriate marital conduct and, in the alternative, irreconcilable differences. Trial court entered decree declaring parties divorced, dividing marital property, and ordering Husband to pay past and future child support obligations. Pursuant to the trial court's decree, a permanent parenting plan was entered assigning Wife as custodial parent of parties' minor children and designating Wife's home as the minor children's primary residence. Husband appeals, challenging court's division of marital property as inequitable, and asserting as error the trial court's failure or refusal to hear minor children's custody preference despite court's statement at hearing that children's preference would be controlling. We vacate and remand.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and DAVID R. FARMER , J., joined. Charles A. Spitzer, Jackson, For Appellant, Virty Houston Linda Sesson Taylor, Jackson, For Appellee, Sandra K. Houston OPINION This case involves a dispute over the trial court's division of marital assets and acceptance of the child custody guidelines set forth in the Permanent Parenting Plan. Plaintiff Sandra K. Houston ("Wife") and defendant Virty Houston ("Husband") were married on June 29, 1985. After nearly fifteen years of marriage, the parties separated. Parties are parents to two minor children, ages 14 and 16 at the time of the most recent hearing before the trial court.

On August 9, 2000, Wife filed a Complaint for Absolute Divorce in the Chancery Court of Madison County, Tennessee on grounds of "cruel and inhuman treatment or conduct," "inappropriate marital conduct which renders cohabitation unsafe and improper," and, in the alternative, irreconcilable differences. In her complaint, Wife alleged that Husband was physically and verbally abusive. Pursuant to her complaint, Wife sought an absolute divorce, custody of the parties' minor children, with reasonable visitation granted to Husband, temporary and permanent child support, and sole possession of the marital residence located at 626 North Royal Street, Jackson, Tennessee. Wife requested that possession of the parties' duplex at 751-753 East Baltimore Street, Jackson, Tennessee, be awarded to Husband. As part of her complaint, Wife also requested equitable division of the parties' debts and payment of Wife's attorney's fees. On that same day, Wife filed a motion to establish child support pendente lite. Wife's motion requested child support "by means of a wage assignment according to the guidelines," with support to be based upon Husband's "most recent full time employment." Wife further requested that Husband be ordered to "[m]aintain all pensions, 401-K and Retirement plans and that he should be restrained from deleting or modifying said plans until this case is finalized." In addition to her complaint and motion for child support, Wife also filed a Motion for Temporary Restraining Order. Wife's motion specifically requested that "the Court issue a temporary restraining order prohibiting and restraining the Defendant from coming on or about the [Wife's] residence," and that "the Court issue a temporary restraining order prohibiting and restraining [Husband] from transferring, encumbering or removing any of his pension, retirement, 401-K, IRA accounts or stock portfolios."1 The court issued a temporary restraining order on the basis of Wife's request. On August 21, 2000, Husband filed an Answer and Counterclaim. In his Answer, Husband denied allegations of physical and verbal abuse, and further denied that the parties possessed any ownership interest in the real property located at 751-753 East Baltimore Street. As part of his counterclaim, Husband sought custody of minor children and child support. Additionally, Husband sought an absolute divorce on the grounds of inappropriate marital conduct or, in the alternative, irreconcilable differences. In September 2000, the court entered an Order for Assignment of Wages and Income for Child Support. As the basis for this Order, the court found that Husband was gainfully employed and had failed to provide any child support since the couple's separation in June 2000. On this same day, the court entered a Consent Order directing Husband to pay $530.50 per month in child support pendente lite. A hearing on Wife's Complaint and Husband's Answer and Counterclaim was held on May 21, 2001. In a Final Decree entered June 11, 2001, the trial court granted Wife an absolute divorce

Despite the temporary restraining order prohibiting such conduct, Husband admitted to encumb ering his pension, retirement, and/or 401-K by taking out a loan during the pendency of the divorce.

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on the grounds of inappropriate marital conduct. The court further acknowledged that Husband voluntarily dismissed his counterclaim, and noted that "the parties had reached a fair and equitable settlement of all the issues in this case including custody, child support and division of property and a permanent parenting plan is incorporated into this decree." Pursuant to this decree, Husband was awarded the 751-753 East Baltimore Street property as a portion of his marital property. On July 19, 2001, Husband filed a Motion to set aside the court's Final Decree, objecting to entry of the Final Decree on the basis that he never received notice of Wife's intention to "enter this order," and further never agreed to the incorporation of the 751-753 East Baltimore Street property into the decree. In support of his objection, Husband maintained that he never had any ownership interest in the 751-753 East Baltimore Street property. The court heard Husband's motion on September 19, 2001. In a Consent Order entered September 26, 2001, the court ordered the decree set aside.2 In September 2001, Wife filed a Motion to Amend Child Support Pendente Lite, alleging that Husband willfully failed to provide support for the parties' minor children. Wife further asserted that Husband's salary had recently increased, thereby justifying an increase in child support from $510.00 to $756.00 per month. On October 22, 2001, the court entered a Consent Order awarding Wife child support pendente lite from Husband via wage assignment. Shortly thereafter, on November 6, 2001, the court entered a Consent Order increasing Husband's child support obligations to $756.00 per month. On January 23, 2002, Husband filed a motion to reduce his child support obligations, seeking reduction of payments to $535.65 per month to reflect the fact that Husband was no longer receiving overtime hours and had incurred increased expenses. In a Consent Order entered March 22, 2002, the parties agreed to reduce Husband's child support obligations to $152.56 per week, retroactive to March 1, 2002.3 On May 14, 2002, Wife filed a Proposed Settlement Summary. As part of this proposal, Wife alleged that Husband was in arrears on child support payments in the amount of $1,020.00. According to Wife, Husband also "reneged" on two settlement agreements, and failed to complete two separate sets of interrogatories drafted by plaintiff's attorney. Pursuant to this proposal, Wife sought a divorce on grounds of inappropriate marital conduct, and a designation of Wife as primary custodian of the parties' minor children. With regard to the parties' marital property, Wife proposed that she be awarded (1) a one-half interest in "all the Defendant's pension or retirement benefits from the Haywood Company," and (2) the parties' marital residence located at 626 North Royal Street. Wife's proposal also provided for a division of the marital debts and payment of Wife's attorney's fees in the amount of $5,800.00 plus costs.
The cou rt add itionally granted attorney Stephen Hale ("Hale"), attorney for defendant, permission to withdraw as counsel. Hale was defendant's second attorney in this matter. An Order m odifying assignment of Husband's wages and income was entered on March 22, 2002 to reflect the amendments set forth in the March 22, 2002 Consent Order.
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On May 14, 2002, the court held a hearing "upon the original Complaint for Absolute Divorce, Answer and Counter-Complaint, statements of Counsel, testimony of witnesses for the Plaintiff, testimony of the parties in open Court and the entire record as a whole." In his statements from the bench, the chancellor said: The Court is of the opinion that Ms. Houston should be granted a divorce on the grounds of inappropriate marital conduct, but I will go even one step further, I will divorce them under the statute and he is no more to blame than she is. You all are just divorced. The parenting plan, as I mentioned, the children will control that. Otherwise, I am approving the plan as has been provided by Ms. Houston. He will pay off the arrearage of child support of $1,020 which includes from July 2000 until November 2000. He will pay child support according to the guidelines. He is no longer making overtime so I am going by what that is. You will have to provide that. MR. DORSEY: You have already set it, Your Honor. THE COURT: She will claim the children. He will be required to pay and maintaining [sic] health and hospitalization on the children through his employer, until they reach 18 years of age. They will divide medical expenses not covered by insurance. Mr. Houston will provide life insurance in the amount of $30,000. That should cover the children until they reach 18 years of age, and they will be beneficiaries of his retirement benefits through his job. The pension plan will be divided one half to Mr. Houston and one half to Mrs. Houston. The real property at Baltimore Street, I don't know how this title vested in Mr. Houston's mother, but they have built up an interest in it. He is awarded that property. She is awarded 626 North Royal Street. The real (sic) property I believe has already been divided. She gets the Toyota, he gets the Mercedes. She pays the Lowe's and he pays the ones he listed.

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Mr. Houston has prolonged the litigation in this case. I have a file here three or four inches thick, and as a result Mrs. Houston is awarded her reasonable attorneys fees as alimony in a lump sum of $5,800 and costs of the cause. On June 18, 2002, the court entered an Order modifying the assignment of Husband's wages and income for the purpose of satisfying his child support obligations. Consistent with its finding at the May 14 hearing, the court determined that Husband was $1,020.00 in arrears on child support payments and thereby ordered Husband's employer to withhold $756.00 per month beginning June 1, 2002. In a Final Decree entered on July 23, 2002, the court declared the parties divorced and stated that Wife's permanent parenting plan should be approved. Pursuant to this decree, the court ordered the following division of marital property: IT IS FURTHER ORDERED that the Plaintiff shall be awarded the jointly owned real property located at 626 North Royal Street, in Jackson, Madison County, Tennessee as her sole and exclusive property and she shall assume and pay any outstanding indebtedness owed thereon and hold the Defendant harmless from any future or further liability thereon. All interest that the Defendant may have had in said property is hereby divested out of him and vested fully and completely in Plaintiff. The Defendant shall execute a Quitclaim Deed to the Plaintiff within 30 days of the entry of the Final Decree. IT IS FURTHER ORDERED that the Defendant shall be awarded the jointly owned real property located at 751-753 East Baltimore Street in Jackson, Madison County, Tennessee as his sole and exclusive property and he shall hold the Plaintiff harmless from any and all indebtedness owed thereon. All interest that the Plaintiff may have had in said property is hereby divested out of her and vested solely in the Defendant. She shall execute any and all documents necessary to convey her interest to the Defendant. IT IS FURTHER ORDERED that the Plaintiff shall be awarded the 1994 Toyota Corolla automobile as her sole and exclusive property and she will assume and pay any indebtedness owed thereon. The Defendant shall be awarded the 1987 Mercedes Benz automobile and the 1988 Silverado truck as his sole and exclusive property and he will assume and pay any indebtedness owed thereon.

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IT IS FURTHER ORDERED that the Plaintiff shall be awarded all the household furnishings and fixtures in her possession. The Defendant shall be awarded all the household furnishings and fixtures in his possession.4 IT IS FURTHER ORDERED that the Plaintiff shall be awarded one-half (

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