Tennessee Husband Who Takes the Fifth at Trial Can Still Appeal

Tennessee law case summary on divorce process in divorce and family law from the Court of Appeals.

William David Russell v. Mary Beth Russell – Tennessee divorce clean hands doctrine

William David Russell and Mary Beth Russell were married in 2011 and were the parents of two young children.  In 2011, the husband filed for divorce in Montgomery County, and alleged irreconcilable differences and inappropriate marital conduct.  The wife filed a counterclaim alleging adultery and inappropriate marital conduct.

The husband worked for his family business, Orgain Building Supply and earned a salary of almost $50,000 plus a bonus.  In 2011, the bonus had been $30,000.  The wife worked as an investment sales associate with Farmers and Merchants bank, left the job in 2008 to stay home with the children, but returned to that job after the separation.  Her salary was $35,000, and she also had some part-time income.

The parties settled some of the issues through mediation, but could not agree on alimony and child support, and a trial was held on those issues.  The trial court granted the wife a divorce on the grounds of adultery and inappropriate marital conduct.  The trial court ordered the husband to pay $1500 per month in transitional alimony for 36 months along with $1346 in child support.  The husband brought an appeal to the Tennessee Court of Appeals.

On appeal, he argued that the $1500 per month transitional alimony was excessive in light of their incomes and the partial settlement of the case.  The wife, on the other hand, argued that both the transitional alimony and child support were too low.  She also argued that the husband’s entire appeal should be thrown out under the “unclean hands” doctrine.

The husband argued that his bonus should not have been considered in calculating his income, since he had already earmarked this money to repay a loan taken out to finance the earlier settlement of the case.  The Court of Appeals carefully examined all of the evidence and concluded that the trial court had erred in setting the alimony at $1500.  Instead, it ordered that this be reduced to $1000 per month.  The Court affirmed the award of child support.

The Court then looked at the wife’s claim that the entire appeal should be dismissed under the “unclean hands” doctrine.  She argued that the husband squandered money during the marriage on a gambling addiction, and then invoked his Fifth Amendment right against self-incrimination at trial.  She argued that the court should draw a negative inference upon this, and cited cases in which a court in a civil matter may draw a negative inference from a party’s invoking the Fifth Amendment.

But the Court of Appeals held that the trial court had weighed the evidence and evaluated the credibility of the parties.  It had found in the wife’s favor, and had based this in part upon those determinations.  Importantly, the wife had not raised the unclean hands doctrine at trial, and the Court of Appeals held that it would be improper to address it for the first time on appeal.  Therefore, the doctrine was not applicable.

No. M2012-02156-COA-R3-CV (Tenn. Ct. App. Nov. 27, 2013).

See original opinion for exact language.  Legal citations omitted.

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