Opinion
No. M2010-00575-COA-R3-CV.
Assigned on Briefs January 31, 2011.
Filed March 30, 2011.
Direct Appeal from the Chancery Court for Franklin County; No. 16,559; Jeffrey F. Stewart, Chancellor.
Judgment of the Chancery Court Affirmed in Part, Reversed in Part, Vacated in Part and Remanded.
Ginger Jackson, Hillsboro, Tennessee, pro se.
Karen Sedora, Tullahoma, Tennessee, for the appellee, Anthony V. Jackson.
Alan E. Highers, P.J., W.S., delivered the opinion of the Court, in which David R. Farmer, J., joined and Holly M. Kirby, J., partially dissented.
OPINION
This appeal involves countless motions filed over a period of nearly nine years following the parties' contentious divorce. The mother appeals, challenging numerous rulings by the trial court. We affirm in part, reverse in part, vacate in part, and remand for further proceedings.
I. FACTS PROCEDURAL HISTORY
Anthony V. Jackson ("Father") and Ginger Jackson ("Mother") were divorced by decree on December 28, 2001. Just days before the final decree was entered, Mother was arrested and charged with solicitation to commit first degree murder after she allegedly attempted to hire someone to poison Father. On June 4, 2003, Mother was found guilty of the charged offense and sentenced to eight years and six months of incarceration.
Both before and after Mother's incarceration, she filed, through attorneys and then acting pro se, what the trial court described as "innumerable motions" relating to the divorce decree and other related issues. However, she later requested that the matter be continued until after she was released from incarceration. Mother was released from prison on or about March 21, 2008, and the trial court proceedings resumed.
Following a hearing, the trial court entered an order on October 30, 2009, resolving at least fourteen pending motions and filings submitted by Mother and Father. Following another hearing, the court entered another order on April 23, 2010, addressing Mother's contempt allegations against Father. Mother timely filed a notice of appeal to challenge various rulings of the trial court.
An amended order was entered November 9, 2009, to correct a computation error.
II. ISSUES PRESENTED
Mother's brief is somewhat difficult to follow, as it makes numerous allegations and addresses various issues throughout. However, the issues that she designates for review on appeal, which we will consider, are slightly reworded as follows:
1. Whether the trial court erred in failing to award Mother post-judgment interest for her marital share of the retirement fund;
2. Whether the trial court erred in failing to alter or amend the valuation of Father's retirement fund to the amount of the actual payout;
3. Whether the trial court erred in altering the value of Mother's interest in the retirement fund due to unpaid judgments;
4. Whether the trial court erred in failing to award statutory interest on the child support arrearage that Father was ordered to pay in the final divorce decree;
5. Whether the trial court erred in ordering Mother to pay interest on unpaid child support;
6. Whether the trial court erred in failing to award Mother a judgment based on Father's dissipation of marital assets, misconduct, and contempt; and
7. Whether the trial court erred in denying Mother's request for attorney's fees and costs.
For the following reasons, we affirm the decision of the chancery court in part, and we reverse in part and remand for further proceedings.
IV. DISCUSSION A. The Award from the Retirement Fund
The parties were divorced by a final decree entered December 28, 2001. Although the final decree of divorce is not included in the record before us, a subsequent order entered by the trial court states that the final decree "directed the parties to ascertain the fair market value of their 401K plans and determine the value of [Father's] Sverdrup savings plan and of his Jacobs stock holdings as of the close of business on November 12, 2001." The final decree "further directed the parties [to] prepare an appropriate qualified domestic relations order providing for an equal division of these assets or in the alternative to allow the parties to resolve any disparity in their retirement plans with a cash payout." After the final decree was entered, the parties attended a settlement conference and attempted to resolve all of their differences, including the provision of their respective pension and retirement plans. However, an agreement was never signed, and the issue regarding the parties' retirement plans remained unresolved.
In 2003, Mother filed motions requesting that the trial court enter either a final order or a QDRO to resolve the matter. Following a hearing, the trial court entered an order on August 31, 2004, in which it found, "from all the testimony and the evidence presented," that the value of Mother's pension on November 12, 2001, was $46,144, and the total value of Father's accounts as of November 12, 2001, was $139,737. Therefore, the court determined, the parties would divide the difference equally, and Mother would be entitled to an interest in Father's accounts valued at $46,796.50. In addition, the court found that Father had failed to pay $2,500 in back child support to Mother, as ordered in the final divorce decree. However, the court also found that Mother had failed to pay $14,000 due to Father under the divorce decree for her dissipation of marital assets. The court took these amounts into consideration, effectively adding $2,500 to Mother's award from the retirement fund, but subtracting $14,000 for her unpaid judgment, to conclude that Mother was entitled to an interest in Father's pension plan valued at $35,296.50. The court then ordered that Father was entitled to pay the amount of $35,296.50 in lieu of entering into a QDRO, "[t]he said amount to be paid within 30 days from the date this order becomes final." Because Mother had been ordered to pay child support, Father was directed to pay the amount owed to Mother to the court clerk to be held "for the benefit of paying child support" of the parties' son while Mother remained incarcerated. The parties were directed to enter a QDRO if Father elected against the cash payout.
Specifically, the court valued Father's Vanguard Savings Account as of November 12, 2001, at $92,543, his Jacobs stock at $5,608, and his pension fund at $41,586, for a total combined value of $139,737.
Both parties filed motions to alter or amend the trial court's order, along with numerous responses, which were not immediately addressed by the trial court. Mother subsequently moved for a continuance until she was released from incarceration. After her release, the trial court held a hearing on the motions to alter or amend, along with many other motions, on September 10, 2009, and it entered an order resolving the issues on October 30, 2009. We do not have a transcript of the hearing in the record before us, but the court's order states that it heard testimony from various witnesses. The court again found that the value of Mother's interest in Father's pension should be set at $35,296.50, as stated in the order from 2004, but the court reduced Mother's interest upon finding that a $27,620.95 child support arrearage had accrued since she was incarcerated, so that her remaining interest in Father's pension was found to be $7,675.55. The parties subsequently executed a QDRO providing for the payment of benefits in that amount.
1. Post-Judgment Interest
The trial court noted in its order that Mother had sought post-judgment interest on the pension award, and it rejected her request as follows:
[Mother] is not entitled to post-judgment interest on this award under T.C.A. § [47-14]-121-122. Statutory interest does not begin to accrue until the party awarded becomes entitled to the money. A timely Rule 59.04 Motion to Alter or Amend that necessitates a hearing suspends the original judgment from becoming final until the court can hear the claims raised in the motion and make a ruling. The August 31, 2004 order awarding [Mother] an interest in [Father's] pension provides that [Father] is entitled to pay [Mother] $35,296.50 in lieu of entering into a qualified domestic order with said amount to be paid within 30 days of the order becoming final. [Father] filed a timely Motion to Alter or Amend within 30 days of the August 31, 2004 order. Consequently, the original order did not become final until the Court heard the Motion to Alter or Amend and entered this final order. Thus, [Mother] is not entitled to post-judgment interest on the award granted in the August 31, 2004 order because [Father's] option to pay [Mother] in lieu of entering into a QDRO did not come into being until 30 days after the order became final, which did not occur until the Court ruled on the Motion to Alter or Amend.
(citations omitted). On appeal, Mother contends that the trial court erred in failing to award post-judgment interest on her award from Father's pension because post-judgment interest is mandatory. While we recognize that the post-judgment interest statute is mandatory, that "does not mean that the party securing the judgment may have interest on the entire judgment unless he is entitled to have the use of the proceeds of the judgment from and after the date the judgment was entered." West American Ins. Co. v. Montgomery , 861 S.W.2d 230, 232 (Tenn. 1993) (citing Price v. Price, 225 Tenn. 539, 472 S.W.2d 732 (1971)).
We agree with the trial court's conclusion that Mother was not entitled to post-judgment interest since the date of the August 31, 2004 order. That order allowed Father to either enter a QDRO or pay Mother $35,296.50 "to be paid within 30 days from the date this order becomes final." Thus, Father was not required to pay Mother for her interest in the pension until the August 31, 2004 order became final. After the order was entered, both parties filed motions to amend the order, which were not addressed until the entry of the October 30, 2009 order. An order that is subject to a pending, timely-filed motion to alter or amend does not constitute a final judgment. See Watts v. Kroger Co. , 102 S.W.3d 645, 646-47 (Tenn. Ct. App. 2002). Thus, the trial court did not err in refusing to award Mother post-judgment interest since August 31, 2004.
Mother also argues on appeal that she was entitled to post-judgment interest since the date of the original divorce decree in 2001. As noted above, the divorce decree instructed the parties to determine the value of their retirement plans, and it provided that the parties could either enter a QDRO providing for the payment of benefits to divide the assets or resolve any disparity with a cash payout. Again, the divorce decree is not in the record before us, but according to Mother, it provided that the parties were to submit an agreed order detailing the terms of any agreement they reached if they chose to pursue a cash payout. An agreed order was never entered, and neither was a QDRO. The trial court eventually determined that Mother was entitled to an interest in Father's accounts, as stated in the August 31, 2004 order, based upon the evidence presented at a February 2004 hearing. Because the divorce decree gave the parties the option of entering into a QDRO for the payment of benefits or entering into an agreed order regarding a cash payout, with no apparent deadline for choosing either, we find that the divorce decree itself did not award Mother a money judgment or entitle her to the immediate use of any funds. As such, Mother was not entitled to post-judgment interest dating back to the original divorce decree. Cf. Hofmeister v. Hofmeister , No. M2000-00363-COA-R3-CV, 2001 WL 1566068, at *5 (Tenn. Ct. App. Dec. 10, 2001) (explaining that the post-judgment interest statute applies to money awards in divorce decrees, but that it did not apply to a $700 insurance check that the husband was ordered to deliver to the wife).
2. Valuation of Father's Pension Fund
Next, Mother challenges the trial court's valuation of Father's pension fund. In its August 31, 2004 order, the trial court found that the total value of Father's accounts as of November 12, 2001, was $139,737, and that the value of his "pension fund" as of November 12, 2001 was $41,586. On appeal, Mother contends that the trial court should have subsequently altered the valuation of the pension fund because Father lost his job and received an actual cash payout of $69,236 in September of 2004. The trial court denied Mother's request to alter the valuation and continued to utilize the valuation as of November 12, 2001. We find no error in the court's decision. The parties were divorced by decree as of December 28, 2001, and the divorce decree ordered that the parties' retirement accounts would be valued as of November 12, 2001, which was apparently the date of the final hearing. Marital property is to be valued "as of a date as near as reasonably possible to the final divorce hearing date." Tenn. Code Ann. § 36-4-121(b)(1)(A). If Father's pension fund was valued as of the date of its actual payout in September 2004, nearly three years after the divorce decree, it would, presumably, have included amounts attributable to Father's post-divorce contributions. Therefore, Mother's request for an amended valuation was properly denied. Due to our resolution of this issue, we also reject Mother's argument that she was entitled to an additional award of post-judgment interest based on the proposed amended valuation amount.
3. Modifications to Mother's Interest in the Pension Fund
Mother argues on appeal that the trial court erred in its August 31, 2004 order because, after it found that she was entitled to an interest in Father's accounts valued at $46,796.50, it added an additional $2,500 to that amount upon finding that Father had failed to pay $2,500 in back child support as ordered in the final decree of December 28, 2001, and it also subtracted $14,000 from her award based upon an amount that Mother had failed to pay under the decree for disposing of marital assets. Mother cites no authority in support of her argument that the trial court erred in offsetting these obligations. We find no error in the trial court's decision to reduce Mother's marital share of Father's pension by the amount of the unpaid judgment for her dissipation of marital property. Regarding the child support judgment, we note that in some cases, courts have held that it is improper to offset a child support arrearage judgment owed by a non-custodial parent against a debt owed by a custodial parent, because, "'[t]o allow a set-off under these circumstances would amount to requiring the children to pay the debts of the custodial parent.'" See Swoffard v. Pino-McClarty , No. 03A01-9707-CV-00454, 1998 WL 202478, at *3 (Tenn. Ct. App. Apr. 28, 1998) (quoting Oliver v. Oczkowicz, 1990 WL 64534 (Tenn. Ct. App. May 18, 1990)). However, those concerns are not present in the instant case due to the fact that it was Father who had custody of the parties' son, while Mother had a complete lack of visitation or contact with him. Because Mother cites no authority that would entitle her to relief on this issue, we affirm the trial court's decision to offset these obligations.
B. Child Support Arrearages 1. The Arrearage Owed by Father
Next, Mother argues that the trial court should have added interest to the $2,500 child support arrearage that Father had been ordered to pay in the 2001 divorce decree and that the trial court found had not been paid at the time of the February 2004 hearing. The child support arrearage was discharged in the August 31, 2004 order after it was added to Mother's share of the pension. Mother did not raise an issue regarding an award of interest due on the child support arrearage until September 10, 2009, the date of the trial court's hearing regarding the numerous outstanding motions and filings submitted by the parties. In a "Response" filed that morning, Mother claimed that the $2,500 judgment had never been paid and that Father should be required to pay the $2,500 judgment in addition to statutory interest from the date of the original divorce decree in 2001. The trial court found that "[Father's] obligation to pay $2,500.00 to [Mother] in back child support was fully discharged as of the entry of the Order dated August 31, 2004, as this figure was credited to [Mother] in the Court's calculation of the amount of [her] entitlements to the retirement and pension accounts of Plaintiff." The order further states that the $2,500 judgment was no longer owed to Mother "and any motions or arguments to the contrary are denied." However, it did not expressly address the issue of interest owed on the unpaid arrearage.
Tennessee Code Annotated section 36-5-101(f)(1) provides, in relevant part: If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year.
Tennessee Code Annotated section 36-5-101(f)(1) specifically governs post-judgment interest on child support arrearages, and it is the statute that is applicable to the issue before us. See Sandusky v. Sandusky , No. M2000-00288-COA-R3-CV, 2001 WL 327898, at *8 (Tenn. Ct. App. Apr. 5, 2001).
"The aforementioned language is clearly mandatory regarding the accrual of interest on arrearages." Gibson v. Prokell , No. W2000-01236-COA-R3-CV, 2001 WL 935461, at *7 (Tenn. Ct. App. Aug. 15, 2001) perm. app. denied (Tenn. Feb. 19, 2002). We recognize that Mother's argument regarding an award of statutory interest was raised at the last minute, but nevertheless, it was raised prior to the hearing at which the trial court considered the parties' motions regarding the August 31, 2004 order, which is the order that discharged Father's child support arrearage and added it to the amount of Mother's pension award. If the August 31, 2004 order had already become final when Mother raised the issue, the doctrine of res judicata would have barred Mother from asserting that statutory interest was owed for the period preceding August 31, 2004. See State, ex rel. Cottingham v. Cottingham , No. M2008-02381-COA-R3-CV, 2010 WL 2943283, at *4 (Tenn. Ct. App. W.S. July 27, 2010) perm. app. denied (Tenn. Jan. 12, 2011). However, when Mother raised the issue regarding statutory interest owed on the child support arrearage, the order that she challenged had not yet become final. As such, we conclude that the trial court erred in failing to assess statutory interest on the unpaid child support arrearage in accordance with Tennessee Code Annotated section 36-5-101(f)(1). We remand for the trial court to calculate the interest award in accordance with the statute.
2. The Arrearage Owed by Mother
Next, Mother claims that the trial court erred in calculating her unpaid child support arrearage and in assessing statutory interest on the arrearage. Mother had been ordered to pay child support in the August 31, 2004 order at the rate of $300 per month, effective July 10, 2003, which was when Father had filed a petition to modify seeking such support. Mother challenged the child support award in her motion to amend. At the September 2009 hearing, when the court resolved the numerous motions filed by the parties, it refused to alter the $300 child support award and determined that Mother owed $22,400 in child support arrearages dating back to July 10, 2003, plus interest in the amount of $10,392, for a total child support arrearage of $32,792.
The court found that although Mother was incarcerated, she had sufficient assets to justify the child support award. Prior to the August 31, 2004 order, Mother had not been ordered to pay child support.
Mother contends that because the August 31, 2004 order requiring her to pay child support did not become final until the motions to alter or amend were heard in 2009, she cannot be required to pay child support or interest on the award for the period prior to the entry of the final order. We disagree with Mother's contention that she is excused from paying child support during that period. Both parents have an obligation to support their minor children even if an order awarding child support has not yet been entered. See Smith v. Smith , No. E2009-01593-COA-R3-CV, 2010 WL 3715590, at *2 (Tenn. Ct. App. Sept. 22, 2010) (citing Bjork v. Bjork, 1997 WL 653917 (Tenn. Ct. App. Oct. 22, 1997)). Therefore, Mother is not entitled to avoid her child support obligation simply because the order requiring her to pay such support was the subject of pending motions to alter or amend until 2009. She still owes child support for the period preceding the entry of the final order.
The issue of interest during that period is not so easily resolved. Neither party has cited a case involving facts similar to those before us. As stated above, Tennessee Code Annotated section 36-5-101(f)(1) provides, in relevant part, that unpaid child support is in arrears "[i]f the full amount of child support is not paid by the date when the ordered support is due," and interest accrues "from the date of the arrearage, at the rate of twelve percent (12%) per year." The August 31, 2004 order set Mother's child support obligation at $300 per month, retroactive to July 10, 2003, which was when Father had filed a petition to modify seeking child support. However, both parties filed motions to amend the August 31, 2004 order. During the pendency of a motion to alter or amend, a judgment is suspended. Farris v. Farris , 1991 WL 134531, at *2 (Tenn. Ct. App. W.S. July 24, 1991) (citing Webb v. Aetna Life Ins. Co., 496 S.W.2d 511 (Tenn. Ct. App. 1973)). "'[A]ny order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of the parties.'" Levy Wrecking Co. v. Centex Rodgers, Inc. , No. M2005-01196-COA-R3-CV, 2006 WL 2855155, at *3 (Tenn. Ct. App. Oct. 6, 2006) (quoting Grissim v. Grissim, 637 S.W.2d 873, 875 (Tenn. Ct. App. 1982)) (emphasis added); see also Tenn. R. App. P. 3(a). "The purpose of a Rule 59.04 motion to alter or amend a judgment is to provide the trial court with an opportunity to correct errors before the judgment becomes final." In re M.L.D. , 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005). Thus, the trial court retains jurisdiction over a case while a timely filed motion to alter or amend is pending, Tenn. R. App. P. 4(e), and any proceedings to enforce a judgment shall be stayed pending entry of an order resolving a motion to alter or amend, and for 30 days thereafter. Tenn. R. Civ. P. 62.02.
We note that some cases state that a motion to alter or amend "is effective to suspend [the] time for appeal until the trial court rules upon the motion. Such a motion that is not timely filed does not suspend the finality of the judgment." McWhorter v. McWhorter , No. M2005-00359-COA-R3-CV, 2006 WL 140406, at *2 (Tenn. Ct. App. Jan. 17, 2006); see also Nagarajan v. Scheick , No. M2000-02323-COA-R3-CV, 2003 WL 22989029, at *3 n. 3 (Tenn. Ct. App. Dec. 19, 2003). These cases discuss the effect of a motion to alter or amend on the time for filing a notice of appeal, but they do not contradict our statement in Farris that "the judgment is suspended" during the pendency of a motion to alter or amend. 1991 WL 134531, at *2. In fact, the McWhorter case seems to suggest that a timely filed motion to alter or amend does suspend the finality of the judgment. 2006 WL 140406, at *2. That is exactly what this Court stated in Farris .
The Eastern Section of this Court recently addressed a situation involving the effect of a motion to alter or amend on the enforceability of an order requiring the payment of alimony. In Forgey-Lewis v. Lewis , No. E2009-00851-COA-R3-CV, 2011 WL 332710, at *6 (Tenn. Ct. App. Jan. 28, 2011), the trial court entered an order resolving most of the issues from the parties' divorce and requiring the husband to pay alimony retroactive to the date of the complaint for divorce. The order was certified as final pursuant to Rule 54.02, and the husband filed a motion to alter or amend, which was eventually denied. Before the motion to alter or amend was addressed, however, the wife caused numerous garnishments to be issued for the collection of the alimony. Id. at *7. One of those garnishments caused $5280 to be taken from the husband's bank account. The husband argued that the garnishment should have been quashed "because the judgment was the subject of a motion to alter or amend and had not become final when the Garnishment was issued and served on the bank." On appeal, the Eastern Section agreed, resolving the issue as follows:
Another argument that Husband makes is that the Garnishment was issued before entry of the final judgment and therefore violated Tenn. R. Civ. P. 62.01. Rule 62.01 provides, in pertinent part, that subject to certain limited exceptions "no execution shall issue upon a judgment, nor shall proceedings be taken for its enforcement until the expiration of 30 days after its entry." In the event of a motion to alter or amend, the stay is extended "pending and for 30 days after entry" of the order granting or denying the motion. Tenn. R. Civ. P. 62.02. . . . As we see it, Wife offers nothing to show that this case fits within a recognized exception to the general rule, and we are not aware of any obvious exception. . . . Accordingly, we conclude that the Garnishment should have been quashed and that the monies paid into the court by the garnishee should have been returned to the garnishee.
Id. at *13. Thus, in Forgey-Lewis , the wife could not take action to enforce the alimony obligation while the motion to alter or amend was pending. We believe that the Court's reasoning would apply to orders containing other obligations as well, such as child support, or the division of marital property.
We note that the Forgey-Lewis Court did express concern about whether its holding would counteract the ability of a trial court to enforce an award of alimony pendente lite. Id. at *13-14. However, the Court stated that it had, "surprisingly, found no law on the interaction of Rule 62.01 with the ability of trial courts to enforce awards of alimony pendente lite by execution, which seems to be a given according to 19 Tennessee Practice, Garrett § 10.2 (2007)." Id. at *14. It also noted that the award at issue in Forgey-Lewis was not was not a pendente lite award. Id. The child support award before us in this case is not a pendente lite award either, so we will not discuss the enforcement of such awards.
Again, the statute authorizing the assessment of interest on child support awards provides that child support is in arrears "[i]f the full amount of child support is not paid by the date when the ordered support is due," and interest accrues "from the date of the arrearage." Tenn. Code Ann. § 36-5-101(f)(1). Keeping the aforementioned principles in mind, we conclude that Mother did not fail to pay child support "by the date when the ordered support [was] due" because the order requiring her to pay such support was not final or enforceable until the motions to alter or amend were resolved in 2009. Therefore, we agree with Mother's assertion that it was improper for the trial court to assess statutory interest on the award of child support for that period of time, and we vacate the $10,392 award of interest.
C. Allegations of Contempt against Father
Mother also argues on appeal that the trial court erred in failing to award her a judgment based upon Father's "dissipation of marital property" and "contempt by misconduct, misrepresentation, defiance, and bad faith."
The final decree of divorce had ordered that the parties' farm and other properties be sold at auction. In July of 2002, Mother filed a petition for contempt alleging that Father had removed personal property "valued at several thousands of dollars" from the farm that was to be sold. The trial court addressed the petition for contempt at a hearing on March 26, 2010, at which Mother testified as to her allegations. She claimed that Father had "a passion for tools" and that they had owned hundreds of thousands of dollars in hand tools during their marriage. Mother claimed that there were over fifty toolboxes full of tools at the parties' property, and that when the auctioneer came to inventory the property prior to the auction, the tools were gone. Mother alleged that Father had broken into the property and stolen the tools. She claimed that she had gone to the house where Father was living at the time and found the tools in the house. She testified that she filed a police report of the incident but that Father was not arrested. Mother introduced various photographs of tools, which she claimed portrayed the tools that were located at the parties' farm that should have been sold. She introduced additional photographs of tools lying on a floor, which, according to Mother, were the stolen tools she found at Father's house. However, the photographs were not dated, and Mother testified that she could not provide a date of when they were taken. Mother also introduced invoices from the purchase of some tools in an attempt to show that the tools were purchased during the parties' marriage, not prior to the marriage, as Father had claimed during the divorce proceedings. Mother testified that the tools allegedly stolen by Father would be valued at "upwards toward $80,000." Mother conceded that she did not raise this issue at any of the court's prior hearings.
In the court's order entered after the 2010 contempt hearing, it noted that numerous hearings had occurred involving the presentation of proof on several issues since the filing of Mother's petition for contempt, and "[a]t no time during these proceedings was the issue of the Contempt alleged in the 2002 Petition brought to this Court's attention[.]"
The trial court entered an order addressing the contempt allegations on April 23, 2010. The court noted that the final decree of divorce had awarded "a substantial amount of personal property" to Father as his separate property because it was determined that he had inherited such property from his parents. This property included "a number of tools and pieces of equipment." The trial court determined that the many items awarded to Father in the final decree could have been the items shown in the photographs presented by Mother at the hearing. The court also noted inconsistencies in Mother's testimony. The court then concluded that Mother had failed to carry her burden of proving that Father had removed personal property of the parties that should have been included in the sale.
The court did find that Father was in contempt for failure to execute a QDRO in compliance with court orders, but the court stated that it would not impose sanctions or penalties for the contempt because of the numerous other financial issues existing between the parties. The court ordered Father to execute a QDRO within sixty days, and a QDRO was subsequently executed and filed with the court.
Mother argues on appeal that we should reverse the trial court's findings because she sufficiently carried her burden of proving that Father removed marital property from the farm, especially in light of the fact that Father was not present at the hearing to testify or deny the allegations. However, we are not inclined to second-guess the trial court's decision on this matter. When the resolution of the issues in a case depends upon the truthfulness of witnesses, the fact-finder, who has the opportunity to observe the witnesses in their manner and demeanor while testifying, is in a far better position than this Court to decide those issues. Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC , 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002). "The weight, faith, and credit to be given to any witness's testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court." Id. Moreover, we review the trial court's decision of whether to impose contempt sanctions using the more relaxed "abuse of discretion" standard of review. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth. , 249 S.W.3d 346, 358 (Tenn. 2008). "This review-constraining standard does not permit reviewing courts to substitute their own judgment for that of the court whose decision is being reviewed." Id. (citing Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006); Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). Here, we find no abuse of the trial court's discretion regarding its decision that Father should not be held in contempt or required to pay Mother for the allegedly missing property. We also find no abuse of discretion in its decision not to impose sanctions for Father's failure to execute a QDRO.
D. Attorney's Fees Costs
Finally, Mother argues that the trial court erred in ruling that each party would be responsible for his or her own attorney's fees and in ordering the parties to split the costs of the cause equally. As support for her assertion, Mother basically repeats her argument about Father allegedly being in contempt. Father asks us to affirm the trial court's ruling on these matters. For the reasons stated in the previous section, we affirm the trial court's decision declining to award Mother her attorney's fees for Father's alleged contempt.
Tennessee Rule of Civil Procedure 54.04(1) provides, in relevant part, that "[c]osts included in the bill of costs prepared by the clerk shall be allowed to the prevailing party unless the court otherwise directs[.]"
Adjudging costs is within the reasonable discretion of the trial court, Lock v. Nat'l Union Fire Ins. Co., 809 S.W.2d 483, 490 (Tenn. 1991), and the trial judge may apportion the costs between the litigants as, in his opinion, the equities demand. Tenn. Code Ann. § 20-12-119. Accordingly, appellate courts are generally disinclined to interfere with a trial court's decision in assessing costs unless there is a clear abuse of discretion. Lewis v. Bowers, 216 Tenn. 414, 423, 392 S.W.2d 819, 823 (Tenn. 1965); Mitchell v. Smith, 779 S.W.2d 384, 392 (Tenn. App. 1989).
Perdue v. Green Branch Min. Co., Inc. , 837 S.W.2d 56, 60 (Tenn. 1992). Finding no abuse of discretion here, we affirm the trial court's decision to split the costs equally between the parties.
V. CONCLUSION
For the aforementioned reasons, we reverse the trial court's decision in part and remand this matter for the court to determine the amount of statutory interest that accrued on the $2,500 child support arrearage owed by Father. We also vacate the award of $10,392 in statutory interest that Mother was ordered to pay for the period during which the order requiring her to pay child support was not final. Because the trial court subtracted the $10,392 interest award from Mother's marital share of Father's pension, on remand, the court should determine whether Mother should be awarded an additional interest in Father's pension to remedy the situation, or whether Father should again have the option of paying Mother this sum in lieu of an award from his pension. We affirm all other aspects of the trial court's decision. Costs of this appeal are taxed equally to the appellant, Ginger Jackson, and the appellee, Anthony V. Jackson, for which execution may issue if necessary.
PARTIAL DISSENT
I agree with most of the majority opinion in this case. I find I must dissent from the majority's decision to vacate the award to Father of statutory interest on Mother's child support arrearage.
In this case, Mother was ordered to pay Father $300 per month in child support, beginning on July 10, 2003. In the fall of 2004 and the early part of 2005, the parties filed various post-trial motions, including cross-motions to alter or amend. Mother's motions in part sought to modify her child support obligation. Mother asked the trial court to continue these post-motions until her release from prison for solicitation to murder Father.
After Mother's release from incarceration, in 2009, the trial court entered an order resolving the post-trial motions, in which Mother's motion to modify her $300 per month child support was denied. The trial court found that Mother owed $22,400 in child support arrearages dating back to July 10, 2003, and awarded statutory interest on the arrearage in the amount of $10,392.
On appeal, Mother argues that she was not required to pay child support until the motion to alter or amend was resolved in 2009, because there was no final, appealable order until then. For the same reason, Mother argues that she cannot be required to pay interest on the unpaid child support until the 2009 order denying her motion to alter or amend. The majority correctly rejects Mother's assertion that she was not required to pay child support until the motion to alter or amend was denied. Surprisingly, however, the majority agrees with Mother that no interest could be assessed on that arrearage until the 2009 order denying her motion to alter or amend, and on that basis vacates the trial court's award of interest on the child support arrearage. It is this conclusion with which I must respectfully disagree.
I partially disagree with the majority's reasoning on the affirmance of Mother's child support arrearage, as discussed infra, although I concur in the result on that issue.
The springboard for the majority's holding is its observation that the order requiring Mother to pay child support beginning in 2003 did not become appealable until the 2009 order denying her motion to alter or amend. This is in accordance with settled law and not disputed.
From there, the majority finds that the 2003 child support order was not enforceable until the 2009 order on the motion to alter or amend was denied, citing essentially two cases, Farris v. Farris , 1991 WL 134531 (Tenn. Ct. App. 1973), and Forgey-Lewis v. Lewis , No. E2009-00851-COA-R3-CV, 2011 WL 332710 (Tenn. Ct. App. Jan. 28, 2011). Based on that finding, the majority goes on to hold that, if enforcement proceedings could not be instituted on the 2003 child support order until the 2009 order was entered, then ergo, interest under T.C.A. § 36-5-101(f)(1) did not begin to accrue until 2009. The majority cites no caselaw in support of this conclusion.
The other cases cited by the majority simply reinforce the undisputed fact that the 2003 child support order was not appealable until the 2009 order was entered.
I believe that neither Farris nor Forgey-Lewis are applicable to the issue before us in this case, and the majority's ultimate conclusion is inconsistent with the language of Section 36-5-101(f)(1) and with legislative intent. Each step of this analysis will be addressed in turn.
Farris v. Farris was a divorce case in which the trial court entered the divorce decree in March 1990, adjudicating alimony, child support, and the division of marital property. Farris , 1991 WL 134531, at *1. The decree did not adjudicate the wife's request for attorney fees. In April 1990, the wife filed a petition to hold the husband in contempt for failure to pay child support and alimony, and the husband filed a petition to alter or amend the amount of his child support obligation. Id.
In July 1990, the trial court entered an order holding that the husband was in arrears on both alimony and child support, and adjudicating the wife's request for attorney fees. The order also modified the March 1990 order to divide the husband's retirement benefits. Id. The husband appealed, and the issue on appeal was "whether the trial court had jurisdiction to modify the final decree of divorce" as to the husband's property rights. Id.
The appellate court in Farris observed that the March 1990 order was not a final order because it did not adjudicate the wife's request for attorney fees. Id. In the alternative, even if the March 1990 order were a final order, the appellate court said, the order was subject to revision because the husband had filed a post-trial motion to alter or amend. Id. at *2. In the course of its discussion of whether the trial court had jurisdiction to modify the property division in the March 1990 order, the appellate court in Farris stated:
When such a motion [to alter or amend] is timely filed, the 30-day time for appeal shall run from entry of the order granting or denying such motion. Rule 4(b) T.R.A.P. During the pendency of the motion the judgment is suspended. See Webb v. Aetna Life Ins. Co. , 496 S.W.3d 511 (Tenn. App. 1973).
Id. Thus, the issue on appeal in Farris involved neither child support nor post-judgment interest. Rather, the Farris court essentially held that the March 1990 order remained within the bosom of the trial court and could be revised, either because it was not final or because of the pending motion to alter or amend. The Farris court's holding reflects a well-settled proposition. See, e.g., Cooper v. Tabb , No. W2009-02271-COA-R3-CV, 2010 WL 5441971, at *8 (Tenn. Ct. App. Dec. 22, 2010); Greer v. Greer , No. W2009-01587-COA-R3-CV, 2010 WL 3852321, at *6 n. 7 (Tenn. Ct. App. Sept. 30, 2010).
The case cited in Farris , Webb v. Aetna Life , likewise involved neither child support nor post-judgment interest; it involved permission to amend a motion for a new trial. See Webb , 496 S.W.2d at 512.
As acknowledged by the majority, recent cases state more precisely that the " time for filing a notice of appeal is suspended by the timely filing" of a motion to alter or amend. See, e.g., Nagarajan v. Scheick , NO. M2000-02323-COA-R3-CV, 2003 WL 229899029, at *3 n. 3 (Tenn. Ct. App. Dec. 19, 2003) (Koch, J.). This wording follows more accurately the language in the rule that is the authority for the holding, namely, Tenn. R. App. P. 4(b) ("if a timely motion . . . is filed . . . to alter or amend the judgment[,] the time for appeal for all parties shall run from the entry of the order . . . granting or denying . . . such motion.") (emphasis added). More importantly, as explained below, the holding in Farris is simply inapplicable to the issue of when post-judgment interest on child support begins to accrue. The other case cited by the majority, Forgey-Lewis , is similarly inapplicable. The majority cites Forgey-Lewis for its holding that the wife could not institute garnishment proceedings to collect the husband's alimony arrearage until the pending motion to alter or amend was resolved. Forgey-Lewis , 2011 WL 332710, at *13-14. As explained below, assuming the holding in Forgey-Lewis is correct, it does not affect when interest on unpaid child support begins to accrue.
As explained infra, Farris is inapplicable even if its statement that "the judgment is suspended" is accurate.
Under the plain language of the child support statutes, each month's child support obligation, if not paid on the date ordered, immediately becomes a judgment, by operation of law. Interpreting T.C.A. § 36-5-101(f)(1), then numbered as Section 36-5-1-101(a)(5), this Court in Summers v. Summers stated: "Thus, when support is not paid by the date it is due, it is automatically converted into a judgment for such arrearage by operation of law. . . . Each month that support was not paid by the father of the children, the amount of arrears became an enforceable judgment." Summers v. Summers , No. 02A01-9709-CH-00230, 1998 WL 713296, at *10-11 (Tenn. Ct. App. Oct. 14, 1998) (Highers, J.) It becomes a judgment at that point even if the amount of the obligation is subject to later revision, as through a motion to alter or amend or by an appellate court. This is made clear by the definitions in the Child Support Guidelines. The Guidelines state:
T.C.A. § 36-5-101(f)(1) defines "in arrears" as the circumstances existing when the full amount of child support is not paid by the date upon which the ordered support is due. The unpaid amount at that time is "in arrears and shall become a judgment for the unpaid amounts.["]
TENN. COMP. R. REGS. 1240-02-05-.02(2)(a). The Guidelines go on to define the terms "child support" and "support" as "a judgment, decree, or order, whether temporary, final or subject to modification issued by a court of competent jurisdiction . . . for the support and maintenance of a child, . . . and which may include related . . . interest. . . ." TENN. COMP. R. REGS. 1240-02-05-.02(3) (emphasis added). Thus, the Guidelines make it clear that, under T.C.A. § 36-5-101(f)(1), even if a child support order is not final and is subject to modification, interest begins to accrue on the date each month that the support is not paid.
The reasoning behind this was addressed in Polk v. Polk , 1989 WL 17463 (Tenn. Ct. App. Mar. 3, 1989) (Cantrell, J.). In Polk , the trial court entered an order finding an arrearage in the husband's child support obligation. The order stated that execution could not issue on the arrearage without the trial court's approval. Id. at *1. The wife filed a petition seeking, inter alia, post-judgment interest on the arrearage. The trial court denied the request for post-judgment interest. The wife appealed. Id. The appellate court in Polk reversed the trial court's denial of post-judgment interest. It applied T.C.A. § 47-14-122, the general post-judgment interest statute. It first found that the trial court's order, finding an arrearage, was a "judgment" under Section 47-14-122, in that it was "an adjudication of the rights of the parties in respect to the claim involved." Id. (citation omitted). The court then explained:
T.C.A. § 47-14-122 states: "Interest shall be computed on every judgment from the day on which the jury or the court, sitting without a jury, returned the verdict without regard to a motion for a new trial."
T.C.A. § 36-5-101(f)(1), specifically addressing interest on child support arrearages, had not yet been enacted when Polk was decided.
[A]n arrearage is by definition, past due. The stay of execution did not postpone the due date of the arrearage; it merely postponed the legal means of enforcement. . . . [I]nterest should accrue despite a stay of execution.
Id. at *2. Thus, Polk makes it clear that the fact that a judgment for child support is not yet enforceable does not affect the accrual of interest; interest accrues when the arrearage is due.
The Polk court commented that the obligor parent "could have avoided liability for interest by paying the arrearage when the court entered its judgment." Polk , 1989 WL 17463, at *2.
Thus, even assuming the accuracy of the statement in Farris to the effect that "the judgment is suspended" because of a pending motion to alter or amend, under Polk , this does not affect the accrual of interest on the judgment.
As noted above, Polk was decided under the general post-judgment interest statute, T.C.A. § 47-14-122. After Polk , Tennessee's legislature enacted statutory provisions specific to child support. The legislature's successive amendments, culminating in the version of T.C.A. § 36-5-101(f)(1) that we apply in this case, show the legislative intent to use several tools, including interest, to compel obligor parents to pay child support on time. In 1994, the legislature amended T.C.A. § 36-5-101 to add the following:
If the full amount of child support is not paid by the fifth (5th) day of the month following the month in which the ordered support is due, the unpaid amount is in arrears, and shall become a judgment for the unpaid amounts and shall accrue interest from the date of the arrearage at the rate set in Section 47-14-121 [10% per annum].
Thus, under the 1994 amendment, the child support became "in arrears" on the fifth day of the month following the month in which the support was due, in effect a "grace period." In 1995, Section 36-5-101 was amended further to provide for 12% per annum interest on child support arrearages, a full 2% more than the interest on other judgments. The 1995 amendment also stated that the accumulated interest "shall be considered child support." By 1998, Section 36-5-101 had been amended to eliminate the short "grace period" in the 1994 amendment, and now states:
If the full amount of child support is not paid by the date upon which the ordered support is due, the unpaid amount is in arrears and shall become a judgment for the unpaid amounts and shall accrue interest from the date of the arrearage at the rate of twelve percent (12%) per annum.
T.C.A. § 36-5-101(f)(1) (emphasis added). With each incremental amendment, the legislature demonstrated its intent to make the statutory penalties for child support arrearages stiffer than those for ordinary judgments, to compel obligor parents to pay child support timely.
In 1998, this provision had the same language, but was contained in T.C.A. § 36-5-101(a)(5).
The holding by the majority is contrary to this legislative intent. Section 47-14-122 states expressly that interest on an ordinary judgment is unaffected by post-trial motions, and begins to accrue upon entry of the verdict or judgment. Under the majority's holding, interest on a child support arrearage would begin accruing later than interest on any other judgment. Moreover, under the majority's holding, an obligor parent can suspend the running of interest merely by filing frivolous post-trial motions.
The majority holding on the accrual of interest is also inconsistent with its holding on the child support arrearage. While I agree with the majority's affirmance of the trial court's holding on Mother's $22,400 child support arrearage, I am puzzled by its reasoning. In affirming the order on the arrearage, the majority simply cites general law to the effect that "parents have an obligation to support their minor even if an order awarding child support has not yet been entered." True enough, but in this case, an order awarding child support had been entered. Without a reference to the trial court's order requiring Mother to pay $300 in child support each month, beginning in July 2003, the structure and amount of Mother's child support obligation cannot be determined. If we affirm the amount of the arrearage found by the trial court, that is implicit recognition of the fact that Mother's $300 per month child support was in fact "due" each month as ordered. Under T.C.A. § 36-5-101(f)(1), if child support is not paid "by the date upon which the ordered support is due, the unpaid is in arrears." It goes on to state that interest "shall" accrue "from the date of the arrearage." Thus, affirming the amount of the arrearage found by the trial court recognizes that the child support was due each month from July 2003 forward. But in vacating the award of interest, the majority states that the child support was not "due" until resolution of the motion to alter or amend. Therefore, the majority opinion is internally inconsistent.
The majority cites Smith v. Smith , No. E2009-01593-COA-R3-CV, WL 3715590 (Tenn. Ct. App. Sept. 22, 2010), which held that the trial court had authority to order retroactive child support, based on both parents' obligation to support their children, whether or not there was a prior order of support.
The majority avoids discussing the application of its reasoning to pendente lite child support award by observing that the child support in this case was not a pendente lite award. That is true, but it is hard to see how the majority's holding, that child support is neither due nor enforceable until post-trial motions are resolved, would not adversely affect awards of pendente lite child support. Does the majority holding mean that a trial court cannot take measures to compel an obligor parent to pay pendente lite child support, such as holding the obligor parent in contempt, until final judgment is entered and post-trial motions are resolved?
For all of these reasons, I respectfully disagree with the majority's decision to vacate the award of statutory interest as to Mother's child support arrearage. I would affirm the trial court's decision in all respects.