In Gorbet v. Gorbet, No. W2011-01879-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2012), Tennessee divorce attorneys learn that the Tennessee Court of Appeals finds transitional alimony, attorney fees and moving expenses proper after a short marriage where one spouse relocated and sacrificed former employment. The Court of Appeals also sheds light on how to determine whether property is marital or separate.
The facts are as follows: Husband owned a construction company building custom homes. He had a daughter from a prior marriage who visited every other weekend. Wife, a quality management analyst in Little Rock, AR, lived with her daughter from a prior marriage. Wife and her daughter moved to Jackson, TN and Wife stopped working following the marriage. Only Husband attended the closing of the parties' new Jackson, TN home several weeks prior to the marriage, and only Husband's name was on the deed. After the marriage, Husband moved out of the parties' new home in February 2011--before Wife could sell her home in Arkansas. Husband filed for divorce, and both parties contested ownership of the home and alimony. After a hearing, the trial court "grant[ed] Wife's petition for exclusive use of the... home." Wife also was to receive temporary alimony in the amount of $2,055 per month.
At trial, Husband stated that Wife's only contribution to Husband's company, which "purchased lots on a speculative basis", was interacting with potential clients at a home show and signing twenty checks. The parties used the business account (personal account) rather than a joint bank account to pay for monthly living expenses during their short marriage. Husband asserted that the parties' new home constituted separate property as the mortgage and title were in his name and he bought it prior to marriage; however, in order to have $2,000 of stonework completed, Wife gave away her car to the workmen, and the parties intended the home to be the "marital home." The parties disputed whether some of the business properties were separate or marital. Husband estimated that he had a $625,000 net worth, including $60,000 to $70,000 per year in income, a $162,000 annuity from his first divorce settlement, and two vehicles. Husband also confessed to engaging in an extramarital affair .
Wife testified she quit her job to assist Husband with his construction business "by running errands, signing checks, and helping Husband with a week-long home show." Wife spent her entire $20,000 savings account during the short marriage to contribute to marital expenses and "pay her own bills" (including the mortgage on her unsold home in Arkansas). She alleged that Husband never permitted her to access either of the bank accounts in his name. Wife claimed that the parties' home constituted marital property, that she did not need to have her name on the title, and that Husband said she was not required to be present at the closing. She referred to obtaining $2,000 of brick and stone services by trading her car. Wife also alleged that another lot constituted marital property since the parties (through the business bank account) made a $16,000 down payment with a loan obtained during the marriage since they anticipated establishing another residence there. Wife sought temporary spousal support. She had received a salary of more than $32,000 per year after working at the Arkansas hospital for ten years. Since the hospital was on a "hiring freeze", Wife was unable to reacquire her former job following the parties' separation; the hospital informed her that she would not reacquire seniority, even in the event that jobs became available. Wife was interested in obtaining a certification or master's degree to improve her likelihood of employment in the speech pathology and audiology field, in which she had already earned a bachelor's degree. In order to find a job in Arkansas, Wife felt that it was necessary to relocate from Tennessee to Arkansas. Wife only earned $500 per month in child support paid by her former husband; she alleged that Husband was responsible for "cutting off her phone" and thus impeded her job search. Wife also alleged that Husband was largely responsible for her high attorney fees because he was dishonest during discovery regarding his infidelity, neglected to maintain the marital residence, and did not pay temporary spousal support as ordered.
The trial court considered the Jackson, TN marital residence, the other lot, and Husband's whole-life insurance policy as marital assets and equitably divided them between the parties. It also provided Wife with two-year transitional alimony of $1700/month the first year and $750/month the following year, $8,000 in attorney fees as alimony in solido, and $2,500 in relocation costs.
The Tennessee Court of Appeals decided the following issues: (1) the award of transitional alimony to Wife; (2) the classification of the marital home, the other lot, and Husband's whole life-insurance policy as marital property; (3) [the award of attorney fees to Wife as alimony in solido; (4) the award to Wife of $2500 in moving expenses.
First, the court indicated that "when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce", transitional alimony is proper (Tenn. Code Ann. § 36-5-121(g)) and upheld the award of transitional alimony to Wife, referring to her sacrifice in leaving Arkansas and her former employment there.
Second, the court upheld the classification of the aforementioned property as marital assets. It described that "marital property" is "all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing..." and that it "must be divided equitably... without regard to fault on the part of either party" (Tenn. Code Ann. § 36-4-121). The court further stated that under the transmutation or commingling doctrine, "separate property can become part of the marital estate due to the parties' treatment of the separate property." Eldridge v. Eldridge, 137 S.W.3d 1, 13 (Tenn. Ct. App. 2002). The marital residence that both parties agreed to purchase, the lot on which both parties expended marital funds, and the whole-life insurance policy that Husband changed from a pre-existing term life insurance policy using marital funds all constituted marital assets.
Third, the court affirmed the alimony in solido attorney fees to Wife due to Husband's inappropriate discovery behaviors (lying about an affair under oath), Wife's minimal income, and the importance of Wife being restored to her former standard of living. Fourth, the court upheld the award of $2,500 in moving costs to Wife since the parties had received estimates for this amount and because Husband testified during trial that he should reimburse Wife for such costs.