Deborah Plunk v. Edward Plunk

• Court: Court of Appeals of Tennessee
• Decided: November 24, 1997
• Docket: 02A01-9702-CH-00040
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION AT JACKSON

_______________________________________________________

) FILED DEBORAH JOANNE CUPPLES ) Chester County Chancery Court PLUNK, ) No. 8847 November 24, 1997 ) Plaintiff/Appellant. ) Cecil Crowson, Jr. ) Appellate C ourt Clerk

VS. ) C.A. No. 02A01-9702-CH-00040 ) EDWARD LEE PLUNK, ) ) Defendant/Appellee. ) ) ______________________________________________________________________________

From the Chancery Court of Chester County at Henderson. Honorable Joe C. Morris, Chancellor

Michael B. McWherter, SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee Attorney for Plaintiff/Appellant.

Harold F. Johnson, Jackson, Tennessee Attorney for Defendant/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs) LILLARD, J.: (Concurs) Plaintiff Deborah Joanne Cupples Plunk (Wife) appeals the final divorce decree

entered by the trial court which awarded custody of the parties’ two children to the Wife, ordered

Defendant/Appellee Edward Lee Plunk (Husband) to pay child support and rehabilitative alimony

to the Wife, and distributed the parties’ real and personal property. We affirm.

The parties were married for twenty-six years and had two daughters, who were

thirteen and fifteen years of age at the time of trial. The parties’ primary source of income during

the marriage was their retail western-wear store, Boots For Less. Until the time of their separation,

both parties worked full-time at the store. The Husband did the paperwork for the store and sold

merchandise. The Wife waited on customers, stocked inventory, maintained the store’s computer

inventory system, cleaned, and performed other tasks as required. The Wife participated in the

management of the store and was capable of running the store when the Husband was not there.

The parties 1992 and 1993 tax returns, respectively, indicated total income of $83,947

and $63,252. Although the tax returns attributed this income solely to the Husband, it was

undisputed that neither party drew a set salary from Boots For Less and that most of this income was

generated by the store, where both parties worked full-time. The parties also earned a small income

from their activities as licensed bail bondsmen and from rental properties which they acquired over

the years, including the Magic Valley property on which Boots For Less was located and various

residential properties.

At the time of trial, the Wife was forty-three years old and had a high school

education. Most of her job experience came from working at Boots For Less. After the parties’

separation, the Wife contacted other retail stores to inquire about employment opportunities. The

Wife did not think it would be a problem for her to find a new job.

The Husband had a high school education and some college education and military

experience. Like the Wife, most of the Husband’s job experience came from his employment at

Boots For Less. The Husband also owned a one-half interest in two Subway restaurants, which he

formerly valued at $25,000; however, the Husband testified that the Subways had no value at the

time of trial because their debts exceeded their assets. According to the Husband, the Subways owed $38,041.35 to their suppliers and $27,246.57 in back taxes. During the year prior to the divorce, the

Subways earned no profits.

In the final divorce decree, the trial court divided most of the parties’ marital property

equally, with all real property to be owned by the parties as tenants in common. The marital estate,

which was valued in excess of $900,000, included, but was not limited to, the following properties:

PROPERTY APPROXIMATE VALUE Magic Valley property $ 175,000 Marital home $ 150,000 26 acres adjacent to marital home $ 104,000 Accounts receivables $ 376,500 Residential rental properties (equity) $ 40,000 Morgan Keegan accounts $ 41,400 Boots For Less Unknown1

Rather than ordering a distribution of the proceeds from the sale of the parties’ real property, the trial

court ordered that the proceeds be deposited with the court clerk to be disbursed later pursuant to

court order or agreement of the parties. The trial court awarded the Husband his interest in the

Subway restaurants.

In addition to distributing the parties’ property, the trial court ordered the Husband

to pay rehabilitative alimony to the Wife in the amount of $400 per month for a period of twenty-

four months and to pay child support in the amount of $798.66 per month. In calculating the

Husband’s child support obligation, the trial court attributed $40,000 of the parties’ total income for

1993 to the Husband.

On appeal from the final divorce decree, the Wife contends that the trial court erred

(1) in calculating the Husband’s income for purposes of determining child support, (2) in failing to

1 A special master was appointed to oversee the liquidation of Boots For Less. award permanent alimony to the Wife, (3) in failing to award the Wife any interest in the Subway

restaurants, and (4) in failing to provide for a definite distribution of proceeds upon the sale of the

parties’ real property.

We first reject the Wife’s argument that the trial court erred in attributing only

$40,000 in gross income to the Husband for purposes of establishing his child support obligation

when the parties’ tax returns showed a much greater income. At trial, the Wife requested that the

trial court award child support based on the Husband’s total income of $63,252 as reported on the

parties’ 1993 tax return. Although the parties’ joint tax return for 1993 attributed all of this income

to the Husband, it was undisputed that most of the $63,252 amount represented income from the

parties’ business, Boots For Less, that both parties worked full-time at the business, and that this

income resulted from the efforts of both parties. Accordingly, we hold that the trial court did not err

in apportioning $40,000 of the $63,252 amount to the Husband as income for purposes of calculating

child support.

As part of this issue, the Wife contends that the trial court erred in failing to require

the Husband to maintain insurance on his life and to name the parties’ children as beneficiaries of

the policy. See T.C.A. § 36-5-101(g) (1996). Inasmuch as there has been no showing of a timely

request to the trial court for this relief, we decline to grant such relief on appeal. Mayfield v.

Mayfield, No. 01A01-9611-CV-00501, 1997 WL 210826, at *7 (Tenn. App. Apr. 30, 1997). The

Wife also contends that, in calculating the Husband’s gross income for purposes of determining child

support, the trial court erred in failing to include depreciation and other amounts and in failing to

average the Husband’s income as shown on the parties’ 1992 and 1993 tax returns. See Tenn.

Comp. R. & Regs. chs. 1240-2-4-.03(3)(a), 1240-2-4-.04(e) (amended 1994). The Wife, however,

did not raise these arguments below. Instead, she requested that the trial court establish the

Husband’s child support obligation based on the $63,252 in total income reported on the parties’

1993 tax return. Under these circumstances, the Wife has waived these sub-issues for purposes of

appellate review. Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. App. 1991).

Even if the Wife properly preserved these arguments, we still would affirm. If, as the

Wife argues, depreciation is added back to the parties’ 1992 income and the 1992 income is then averaged with the parties’ 1993 income, the result is an average gross income of $77,950. Inasmuch

as this figure represents the combined income of both parties, we conclude that the trial court

properly allocated over fifty percent of this income to the Husband for purposes of determining the

Husband’s child support obligation.2

We also affirm the trial court’s decision to award the Wife rehabilitative alimony in

the amount of $400 for a period of twenty-four months in lieu of the $2,000 per month in periodic

alimony requested by the Wife at trial. The trial court has broad discretion in determining whether

to award alimony. Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993). In deciding the amount

and type of alimony to be awarded in this case, the trial court was required to consider the following

factors:

(A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;

(B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;

(C) The duration of the marriage;

(D) The age and mental condition of each party;

(E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;

(F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;

(G) The separate assets of each party, both real and personal, tangible and intangible;

(H) The provisions made with regard to the marital property as defined in § 36-4-121;

(I) The standard of living of the parties established during the marriage;

2 As for the Wife’s argument on appeal that deductions for advertising and car expenses should be added back to the parties’ gross income, our review of the record reveals no evidence to support the Wife’s contention that these expenses were excessive. See Tenn. Comp. R. & Regs. ch. 1240-2-4-.03(3)(a) (amended 1994). (J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;

(K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and

(L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

T.C.A. § 36-5-101(d)(1) (1996). Of these factors, need and the ability to pay are the most critical.

Loyd, 860 S.W.2d at 412.

The evidence in this case demonstrated that the parties were similarly situated in

terms of their respective educations, job training, earning capacities, and assets. Both parties had

high school educations, and both parties’ primary job experience was working together in their

business, Boots For Less. The Wife, who was forty-three years old at the time of trial, testified that

she did not think it would be difficult for her to obtain other employment in the retail industry. The

Husband was uncertain as to his future employment prospects. Moreover, the Wife, like the

Husband, was awarded one-half of a marital estate valued in excess of $900,000. In light of these

factors, we conclude that the trial court did not err in refusing to award periodic alimony to the Wife.

Barnhill, 826 S.W.2d at 454-56.

As for the property issues raised on appeal by the Wife, we affirm the trial court’s

decision to award the Husband his interest in the two Subway restaurants and to allocate to the

Husband any debt associated therewith. Trial courts have broad discretion in dividing marital

estates, and their decisions are afforded great weight on appeal. Fisher v. Fisher, 648 S.W.2d 244,

246 (Tenn. 1983); Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn. App. 1990). In light of

the Husband’s testimony that the debts of the Subway restaurants exceeded their value, we conclude

that the trial court did not abuse its discretion in declining to award the Wife any interest in the

restaurants. We likewise conclude that the trial court did not abuse its discretion in requiring that

the proceeds from the sale of the parties’ real property be deposited with the court clerk prior to

distribution of the funds. As a final matter, we deny the Wife’s request for an award of attorney’s fees on

appeal.

The final divorce decree entered by the trial court is affirmed. Costs of this appeal

are taxed to the Wife, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. (Concurs)

______________________________ LILLARD, J. (Concurs)