In Dobbs v. Dobbs, No. M2011-01523-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2012), Tennessee divorce attorneys learn the manner in which courts select the primary residential parent, determine when a spouse should refinance the marital residence, and evaluate the value of a marital residence.
The Facts: Husband and Wife had one minor child at the time of their divorce. Husband was employed with the family business as truck driver and Wife was employed as a radiation therapist. The court appointed Wife the primary residential parent and conferred upon her the $235,000 marital residence upon awarding her a divorce due to Husband's inappropriate marital conduct; however, Wife "was to be responsible and hold harmless Husband on the debt encumbering the property" (both a first mortgage and $233,792 line of credit for a second mortgage). She was not required to refinance, or otherwise remove Husband's name from liability.
The Issues: (1) which parent should be designated the primary residential parent; (2) whether the court should compel Wife to refinance the residence in her name alone; and (3) whether the marital residence was properly valued.
The Holdings: First, in alleging that he should be designated primary residential parent, Father asserted that the trial court improperly considered his failure to restrain the minor child in a car seat while the child rode in his automobile, instead placing the child in the front seat of an airbag-equipped automobile; he stated that the parenting plan statute, T. C A. § 36-6-404, makes no reference to such a factor. Further, Husband alleged that Wife intentionally interfered with the time Husband was to spend with the minor child. The appellate court emphasized the importance of seeking the child's best interests and mentioned the "broad discretion" given to trial courts; it applied the factors listed in the parenting plan statute and explained that the trial court was permitted "to consider other factors deemed relevant," including Wife's intrusion into Husband's time with child and Husband's disobedience of child restraint laws. The appellate court affirmed that Wife should be primary residential parent since she met more statutory factors than Husband. The court's reference to Father's failure to comply with child restraint laws was within the court's discretion to consider factors deemed relevant by the court and was not a reason to overturn the decision. See T. C A. § 36-6-404(b)(16).
Second, Husband alleged that the marital property (a 6.03-acre tract of land and a house) was worth at least $50,000 more than the trial court's valuation, having testified at trial that he reviewed the Comptroller's records. The appellate court also looked to evidence a certified real estate appraiser's assessment, reached by conducting an inspection, considering neighborhood property values, and formulating an opinion that the land's highest value could be attained by regarding it as two separate parcels. The value placed on the property by the trial court was based on the appraiser, whose valuation was in close proximity to the date of the division of property, and was within the range of evidence presented by the parties. Therefore, evidence does not preponderate against the trial court's valuation, which is upheld.
Third, Husband alleged that the court should order the property to be refinanced in Wife's name only. The appellate court noted that courts have a variety of methods by which to allocate marital debt and ownership of assets, including: "hold harmless" provisions, joint ownership lasting until sale or finance, and refinancing the property in one person's name. The court explained that when determining the proper division of marital property, courts must evaluate "the relative ability of each party for future acquisitions of capital assets," pursuant to Tenn. Code Ann. Section 36-4-121(c)(4); Therefore, the appellate court expressed concern that failing to make any provision for Husband's release from the debt would be contrary to T.C.A. § 36-4-121(c)(4). Accordingly, this issue was remanded for the trial court to determine a reasonable time for Wife to secure Husband's release from indebtedness and to amend the final decree accordingly.