Dye v. Dye Divorce Appeal
Tennessee Court Decision.

E2014-01891-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jacqueline S. Bolton

James D. Dye (“Husband”) and Marlene J. Bidelman-Dye (“Wife”) met in Pittsburgh, Pennsylvania, while Husband was there on business. At the time, Wife practiced law in Pittsburgh. They married on December 31, 2004, the second marriage for both parties. Wife relocated to Tennessee because Husband had children from his prior marriage residing in the Chattanooga area. Husband also was employed at that time by a family business in Cleveland, Tennessee. Upon moving to Chattanooga in December 2004, Wife was employed as an attorney by the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (“Law Firm”). Initially, she earned $100,000 per year with Law Firm. On January 9, 2006, the parties‟ minor child, Maya, was born. In June 2006, Husband began working at Chattanooga Office Supply (“COS”).

According to Wife, prior to the marriage, she sold a townhome in Virginia and realized a gain of $58,000. The money was invested in a Roth IRA, an IRA, and a money mutual fund. In May 2005, Wife purchased the marital residence at 766 Breezewood Way in Chattanooga, using money from the sale of the townhome.

The parties separated in September 2011, upon Wife learning of the extramarital affairs of Husband.1 Wife left the marital home with the minor child. On January 18, 2012, Wife, pro se, filed the initial complaint for divorce. She did not pray for attorney‟s fees or alimony. On February 16, 2012, she filed an amended complaint to allege adultery and remove irreconcilable differences. At this time, she also filed a proposed temporary parenting plan and requested child support pendente lite. When she filed the complaint for divorce, Wife earned over $123,000 per year with Law Firm. Husband‟s base salary with COS was $96,000 with yearly bonuses. In 2010, his gross bonus was $50,000. In 2011, his gross bonus was $40,000. In 2012, the gross bonus was $50,000. Prior to October 2012, Husband‟s income also included $350 per month specifically for use of an automobile. In October 2012, however, COS purchased a vehicle titled in the company name for Husband‟s use. According to Husband, he is responsible for his own gas and takes care of the maintenance on the vehicle. Beginning on January 1, 2012, after Wife removed Husband, the child, and Husband‟s other two children from her policy through Law Firm, Husband began carrying the child on his health insurance.

The parties made an attempt to reconcile, with Wife dismissing her complaint on March 13, 2012. The final order of voluntary dismissal was entered by the trial court on the following day. On April 9, 2012, however, Wife moved to set aside the order of dismissal and reinstate the divorce action. She also moved for adoption of her temporary parenting plan and payment of child support pendente lite. On April 13, 2012, the parties entered into an agreed order reinstating the divorce. During this month, Husband began paying child support in varying amounts. These payments continued in this manner until October 2012, at which time the parties stipulated to $1,000 per month.

According to Husband, Wife depleted the parties‟ joint bank account. She rented an apartment the parties could not afford. Husband claims he kept his 2011 bonus in cash in the marital residence out of fear Wife would take the bonus if the money was deposited into their joint bank account. In February 2012, while the parties were in Mississippi visiting Husband‟s dying mother, Wife admitted to taking $6,000 of Husband‟s bonus, but alleged she returned $5,900 the following day. At some point, $14,275 disappeared from the home. The trial court determined the missing cash should be treated as an asset received by Wife.

In March 2012, Law Firm reduced Wife‟s pay by $14,000. Four months later, Wife was informed she would be losing her job with Law Firm as of September 30, 2012. She was provided a severance package of her salary of over $10,000 per month through January 31, 2013.

In June 2012, Wife, now represented by counsel, filed a motion for child support and attorney‟s fees. Later that month, Husband filed a motion for possession of the 2011 tax refund and other funds. On August 2, 2012, Husband filed a motion to designate him as the primary residential parent, based upon Wife‟s desire to relocate to Atlanta, Georgia, with the child. According to Wife, she needed to live with her parents to lower expenses because of her job loss. Husband objected to the relocation, citing, inter alia, previous disclosures to him by Wife that her parents were alcoholics who had been abusive to her. At the hearing on the relocation request, Wife did not disclose to the court she was receiving the substantial severance package.

Wife began practicing law as a sole practitioner on November 15, 2012. As of February 1, 2013, she also was receiving unemployment benefits from the state in the amount of $290 per week. At some point during the month, the GMC Yukon vehicle driven by Wife was repossessed because Wife failed to make the monthly payments.2 Liability for the vehicle was a joint debt of the parties. On February 25, 2013, however, three days after the Yukon was repossessed, Wife purchased a 2005 Mercedes-BE M Class vehicle for $19,016.79 at an interest rate of 17.680 percent without obtaining the permission of the court pursuant to the statutory injunction. Instead of making payments on the repossessed GMC Yukon, Wife instead made a deposit of $4,000 on the new vehicle. The application completed by Wife to purchase the vehicle reflected her claimed total monthly income was $4,037 per month.

Meanwhile, beginning February 1, 2013, Husband began paying Wife‟s health insurance in the amount of approximately $450.63 per month. Additionally, he paid the Home Equity Line of Credit owed to Capital Mark Bank in the amount of $258 per month. Husband‟s base monthly gross income was $8,000 and his net income per month, after taxes, insurance and payment of his child support obligations, was $2,900.36. According to Husband, his net income per month was in the negative by $2,678.90, after payment of his monthly obligations and living expenses.

Husband contends that during the divorce litigation, Wife continued to spend money in excess of the parties‟ means. He cites as an example Wife‟s insistence on sending the child to an expensive private school, St. Nicholas School, for prekindergarten and kindergarten. The school debt at the time of the final hearing of divorce totaled approximately $13,182 in unpaid tuition, extracurricular, camp, and lunch expenses. The record reveals Wife received $11,721.44, from the parties‟ joint income tax refund from 2011. Upon selling a Toyota vehicle, the trial court entered an order which required Wife to pay the proceeds of the vehicle sale to the St. Nicholas school debt. Wife kept $500 of the sale proceeds received in direct contravention of the trial court‟s order. Wife also received a total of $10,422 from Husband‟s 2012 year-end bonus. During this time, the trial court found Wife took $14,275 in cash from Husband‟s bonus which was located in the marital residence. Further, Wife withdrew funds from her 40l(k) totaling $20,000 without obtaining permission of the trial court. She admitted to taking a vacation to Mexico in March 2012 and a trip to Disney World around the end of December 2012 or January 2013, spending marital funds. Wife acknowledges she took these trips while she sought an award of alimony from the court.

The case was heard on April 17, and 30, 2013, with closing arguments on May 13, 2013. The parties were finally divorced pursuant to a memorandum opinion and order (“M&O”) entered on June 4, 2013. In a final order of divorce entered on September 12, 2013, Wife was designated the primary residential parent and awarded transitional alimony in the amount of $1,000 per month for eighteen months. A parenting plan was adopted and child support was set. Husband filed a motion to alter or amend.

The day after the final order of divorce was entered, Wife gave statutory written notice to Husband of her intent to relocate with the child to Pittsburgh, Pennsylvania, to take a full-time position with a firm (“B&F”) there. Husband thereafter filed a petition in opposition to removal of the child. In view of Wife‟s intention to relocate, Husband asked the trial court to consider the Wife‟s new employment, as this development contradicted her testimony at trial. He also requested, among other things, a change in the designation of the primary residential parent, adjustment of child support, and removal of any requirement for payment of alimony.

After a hearing regarding the relocation issue, on January 7, 2014, the court designated Husband as the temporary primary residential parent until the end of the child‟s school year, terminated Wife‟s transitional alimony, and continued Husband‟s child support obligation to Wife pending the final hearing.
The court found Husband would be the temporary primary residential parent “until such time as [Wife] adjusts to her new life in Pennsylvania and establishes her practice, if in fact, she does have a job there.”

Husband‟s child support and transitional alimony obligations were being paid by wage assignment. Wife, however, refused to agree to modify the assignment. As a result, in January 2014, Wife received an overpayment of alimony. The trial court entered an amended order on January 13, 2014, but Wife did not return the overpayment. On May 13, 2014, the court entered a M&O permitting the relocation of the child. The court observed Wife “has finally established that she has a reasonable purpose to remove the parties‟ minor child . . . to her new job in Pennsylvania.” Wife‟s proposed permanent parenting plan was adopted with certain modifications. The court further found each party was responsible for his or her own attorney‟s fees and taxed costs equally.

The judgment of the trial court is affirmed, and the case is remanded for such further proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Marlene J. Bidelman, for which execution may issue, if necessary

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