Merkel v. Merkel Divorce Appeal
Tennessee Court Decision.

M2015-00670-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson

The parties were married on April 17, 1999. Two children were born to their marriage. They were eleven and eight at the time of the filing of the divorce complaint. Husband and Wife separated in the summer of 2006. On August 7, 2006, Wife‟s father, McKeel, purchased a house, the West Lake residence, for the use and benefit of Wife and the children, paying $119,400 in cash from his life savings. The owners listed on the deed are McKeel and Wife. Shortly after McKeel bought the West Lake residence, Husband and Wife reconciled, and Husband moved in with Wife. They lived there together until the summer of 2013.

On December 23, 2013, the trial court entered an agreed order reflecting the parties‟ agreement to a temporary parenting plan setting forth a co-parenting schedule giving Husband and Wife roughly equal co-parenting time. The trial took place on March 10 and April 8, 2014. At trial, the parties generally agreed that beginning in tax year 2007 and continuing through 2011, Husband and Wife tendered their federal income tax refund to McKeel.

Husband testified that these monies were tendered to McKeel in accordance with an alleged oral agreement that Husband and Wife would purchase the West Lake residence from McKeel, continuing to pay him the amount of their tax returns until they had paid the purchase price of $119,400. Both McKeel and Wife denied any such agreement and further objected to Husband‟s testimony on the grounds that any oral agreement to sell the real property is unenforceable in Tennessee

The trial court entered its final divorce judgment on May 2, 2013. The court adopted Husband‟s proposed parenting plan, which designated him primary residential parent and gave the parties “essentially equal” parenting time with the children. The court ordered Husband to pay child support in the amount of $458 per month in accordance with the Child Support Guidelines. The amount of child support is not at issue on appeal. Although the trial court did not explicitly find the West Lake residence to be Wife‟s separate property, it is clear from the order that it implicitly so found. The court found that McKeel paid for all of the expenses associated with maintenance and upkeep of the property, repairs, insurance, taxes, and any other expenses relative to the West Lake residence. There was no evidence presented that the property had increased in value from the time of purchase to the time of trial. Consequently, the trial court awarded Wife a one-half interest in the West Lake residence, and held that Husband had no interest in the property.

Carl Shane Merkel (Husband) contends that the trial court erred in its division of the marital estate, its award of child support made retroactive to the date that Starla Merkel (Wife) filed her complaint, and its monetary award to Wife‟s father, Terry McKeel, who was allowed by agreed order to intervene as an indispensible party. The award to McKeel was based on the trial court‟s finding that Husband owed McKeel $15,343.45 for unpaid loans made during the marriage by McKeel to Husband. We find no error in the division of the marital estate and the trial court‟s child support order. We hold that the issue of Husband‟s debt to McKeel was properly raised in McKeel‟s crossclaim and that the trial court had jurisdiction to dispose of this claim under the factual scenario reflected in the record. Wife raises the issue of whether there is evidence supporting the trial court‟s order decreeing that Chris Allen, a friend of hers, could not be in the presence of the two children born to Husband and Wife. We agree and modify the trial court‟s judgment to remove the prohibition barring Allen from having contact with the children. The judgment is affirmed in all other respects.

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