Court: TN Court of Appeals - April 8, 2013
Attorneys: Donald N. Capparella, Nashville, Tennessee, and Amy J. Farrar, Murfreesboro, Tennessee, for the appellant, Olga Alekseenko Jacobsen.
Lauren M. Spitz, and Demeka Kay Church, Franklin, Tennessee, for the appellee, Jarrod Justin Jacobsen.
Judge: CLEMENT
Mother appeals the trial court’s designation of Father as the primary residential parent of the parties’ minor child, the parenting plan, and the division of marital property. The trial court found that the majority of the factors set forth in Tennessee Code Annotated § 36-6-106 weighed equally in favor of both parents but designated Father as the primary residential parent primarily because the court awarded Father the marital residence, which provides stability for the child. The trial court, however, did not make any findings concerning a wealth of evidence of physical and emotional abuse by Father, some of which Father admitted, and we have determined that the preponderance of the evidence established that Father was abusive of Mother, sometimes in the child’s presence. Because Tennessee Code Annotated § 36-6-406(a) mandates that a parent’s parenting time shall be limited if the parent is found to have engaged in abuse, we reverse the designation of Father as the primary residential parent, as well as the parenting plan adopted by the court, and remand with instructions to designate Mother as the primary residential parent and establish a new parenting plan considering all applicable factors. As for the division of the marital estate, the trial court awarded Father 68% of the marital estate and Mother 32%, which Mother contends is inequitable. She asserts the inequitable distribution is due to Father being awarded the marital residence, which was unencumbered and valued at $216,000, with Mother receiving $55,000, being 26% of the equity, as her share of the marital residence. Considering the length of the marriage, that each spouse contributed substantially to satisfying the mortgage on the residence, and the relatively equal earning capacities of the parties, inter alia, we have determined it is inequitable to award Father 74% of the equity in the marital residence, the result of which awards him 68% of the marital estate. Therefore, we remand with instructions to modify the award by ordering Father to pay Mother $97,200, instead of $55,000, for her interest in the marital residence. As for attorney’s fees, we find no error in the trial court’s denial of Father’s request for his attorney’s fees at trial and we deny each party’s request for attorneys’ fees on appeal.
There are currently two different statutes setting out non-exclusive lists of factors for the trial court to apply to help it reach the goal of determining a child’s best interest. Tennessee Code Annotated § 36-6-106, which applies to custody determinations, and Tennessee Code Annotated § 36-6-404, which governs the establishment of permanent parenting plans.
Tennessee Code Annotated § 36-6-406, which provides that:
(a) The permanent parenting plan and the mechanism for approval of the permanent parenting plan shall not utilize dispute resolution, and a parent’s residential time as provided in the permanent parenting plan or temporary parenting plan shall be limited if it is determined by the court, based upon a prior order or other reliable evidence, that a parent has engaged in any of the
following conduct:
(1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting responsibilities; or
(2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child or of another person living with that child as defined in § 36-3-601.
As recognized in Burden, under either Tennessee Code Annotated § 36-6-106 or 36-4-404, the trial court is required to consider evidence of physical or emotional abuse against the other parent in determining the custody and parenting schedule of the minor child. Burden, 250 S.W.3d at 913. Abuse is defined as “inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, or malicious damage to the personal property of the abused party.” Tenn. Code Ann. § 36-3-601(1).
Opinion located at:
