Husband Missing Chart: Divorce Property Division Appeal Tossed Out
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Tennessee case summary of a divorce trial appeal after 13 years married.
Ivan Michael Kanski v. Kelly Jean Kanski
The husband and wife in this Williamson County, Tennessee, case were married in 2004 and had one child in 2007. Prior to the marriage, the couple lived in a Nashville duplex owned by the husband. They later purchased a home but kept the duplex as a rental property.
During most of the marriage, the husband worked as a web developer and the wife was a stay-at-home mom. In 2013, the started a business and the wife worked as manager and fitness instructor.
The wife filed for divorce in 2015, citing irreconcilable differences and inappropriate marital conduct. The husband lost his job about this time, and the wife made a motion to sell the marital residence to make up for the lost income. The husband eventually agreed, and they entered into an agreed order to distribute the proceeds to cover living expenses and attorney fees. In 2017, the wife was awarded $2,500 per month in temporary support, which was paid from the proceeds from the residence.
After mediation, the parties agreed to a parenting plan, under which the wife was named primary residential parent. Trial was held in 2017 on the remaining issues.
After hearing extensive testimony, the lower court made its ruling. It granted the wife the divorce on the grounds of inappropriate marital conduct, and noted that the husband’s testimony lacked credibility and demeanor.
With respect to the Nashville duplex, the court accepted the wife’s value of $315,000 and held that the property had transmuted into marital property. The court ordered the husband to refinance and pay the wife her $118,000 marital share. The company was valued at $5,000 and awarded to the wife.
The court ordered the husband to pay $1,195 per month child support and rehabilitative alimony of $1,250 for 48 months. The husband was also ordered to pay attorney fees of over $56,000. The husband appealed to the Tennessee Court of Appeals.
The husband raised several issues, and the first issue addressed by the appeals court was property division and valuation. In particular, the husband argued that the lower court had erred in finding that the duplex had transmuted to marital property, and that the family business had been incorrectly valued.
Unfortunately for the husband, the appeals court did not reach the merits of these issues. Court of Appeals rules require a party raising such issues to include in the brief a table showing all assets and debts. This was not included in the husband’s brief. Even after the deficiency was pointed out in the wife’s brief, the husband failed to include the table in the reply brief. For this reason, the appeals court held that the issue was waived.
The husband next argued that the alimony awards for rehabilitative alimony and attorney fees were erroneous. The appeals court pointed out first that the trial courts have wide discretion in such decisions, and that judgments will not be set aside without a strong showing that it is unreasonable.
In this case, the trial court made extensive findings. The husband had an income of over $87,000 and had earned over $100,000. The wife ran the fitness business, which largely failed. The wife would require additional education and was currently enrolled in a community college. Based on a 13 year marriage, the trial court deemed the rehabilitative alimony appropriate.
After reviewing the evidence, the appeals court found the award to be reasonable and supported by the evidence. For that reason, it affirmed the award.
The appeals court also affirmed the award of attorney fees as alimony in solido. Once again, the appeals court reviewed the evidence and found the lower court’s conclusions supported by the record.
The husband did fare somewhat better in his argument that child support was set too high. The lower court had imputed an additional $12,500 income per year (on top of the evidence of $87,500 per year) to the husband, but the appeals court held that there was insufficient evidence supporting this. Therefore, it vacated the child support award and remanded the case for a proper determination.
For these reasons, the Court of Appeals remanded the case.
No. M2017-01913-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2018).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
