Nancy Ann McCracken Sizemore v. Steven Douglas Sizemore and Nancy Ann McCracken Sizemore v. Steven Douglas Sizemore

Citation: Not availableDocket: E2006-01456-COA-R3-CV

Court: Court of Appeals of Tennessee; July 30, 2007; Tennessee; State Appellate Court

Original Court Document: View Document

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Nancy Ann McCracken Sizemore filed for divorce from Steven Douglas Sizemore in the Washington County Circuit Court but later voluntarily dismissed that case. On the same day, she initiated a new divorce complaint in the Chancery Court for Washington County. The Chancery Court awarded her a divorce, divided marital property, and mandated child support and alimony from Husband. Following this decision, Husband filed a counterclaim in the previously dormant Circuit Court case, arguing that it was still active since no dismissal order was made. The Circuit Court dismissed his counterclaim, determining that he had waived his right to pursue the case in Circuit Court by participating in the Chancery trial and that the notice of nonsuit had effectively dismissed the prior case.

On appeal, Husband raised several issues, claiming that the Chancery Court lacked jurisdiction due to the pending Circuit Court case, that he was denied access to a transcript of the divorce hearing, that the Chancellor exhibited bias, and that the court erred in various decisions regarding child support, property division, alimony, income imputation, and a contempt finding. He also contested the Circuit Court's authority to dismiss his counterclaim. The appellate court affirmed the judgments of both the Chancery and Circuit Courts, concluding that the lower courts acted within their jurisdiction and authority. 

The couple married in July 1978 and had two children, one of whom, Ryan, is severely autistic and requires constant supervision. Husband comes from a wealthy background and has had business success but also a history of illegal drug use. Wife, who has an elementary education degree, paused her teaching career to care for their children and later worked part-time with Husband and his father.

In June 2002, the Wife initiated divorce proceedings in the Washington County Circuit Court, later dismissing that case and filing a new complaint in Chancery Court in July 2003, citing inappropriate marital conduct and seeking alimony and support for their disabled adult child, Ryan. Husband denied allegations of inappropriate conduct and stated he had consistently supported Ryan, who receives $340 monthly in SSI and TennCare coverage for medical needs. A bench trial was held from October 11-13, 2004, with no transcript available. On January 4, 2005, the Chancery Court granted the divorce, finding Wife credible while deeming Husband's credibility poor, noting he evaded questions and admitted to drug addiction and alcoholism. The court characterized Husband as egocentric, irresponsible, and a burden on his father, who financially supports him. Testimony indicated Husband had mismanaged business finances, and he admitted to significant cocaine use throughout the divorce process. The court concluded that both Wife and Husband's parents had enabled his substance abuse.

Husband, despite his substance abuse issues, is described as intelligent and entrepreneurial, with experience in various businesses including general contracting, retail plumbing sales, and a t-shirt business. He has previously supported a lavish lifestyle for his family through significant earnings, estimated at $100,000 annually, which he is currently not achieving due to his drug addiction. His spending habits include expenditures on drugs, alcohol, and relationships outside of marriage. The court acknowledges that Husband is grossly under-employed due to his addictions and familial support, but he currently retains all business interests previously shared with Wife, enabling him to generate income.

Wife is solely responsible for their adult disabled son’s care, facing challenges due to inconsistent state support, which limits her employment opportunities. The court recognizes that this lack of consistent help necessitates Wife's availability at all times, making stable employment unlikely. Consequently, Wife will receive minimal periodic support from Husband, who is better positioned financially to meet their federal tax obligations, which he has primarily neglected. The court determined that Husband gifted his interest in the marital home to Wife, entitling her to approximately $240,000 from its sale as her separate property, with the proceeds first allocated to cover her attorney's fees.

Wife was awarded a vehicle valued at approximately $38,000, while Husband received two vehicles worth about $21,000 and real property valued at $30,000. The court ordered Husband to fulfill several financial obligations: pay all federal tax obligations incurred during the marriage, provide $1,254 monthly in child support for their son Ryan, pay $500 monthly in alimony, reimburse Wife $1,980 for court reporter expenses, obtain a life insurance policy for at least $250,000 naming Ryan as a beneficiary in trust, and cover all debts related to their businesses and any owed to his father. The Chancery Court found Husband in contempt multiple times for failing to comply with these payments and later increased his monthly child support obligation to $1,316 due to his lack of engagement with Ryan.

On May 17, 2005, Husband filed a motion to recuse the Chancellor and to strike all judgments, citing concerns about impartiality, and a motion to dismiss Wife's divorce complaint for lack of subject matter jurisdiction, arguing that the Circuit Court had not dismissed the case following Wife's voluntary nonsuit notice. Both motions were denied by the Chancery Court. Additionally, Husband sought permission to purchase a transcript of the divorce hearing, claiming entitlement to it since he was required to reimburse Wife for court reporter expenses; this motion was also denied.

On the same day, Husband filed a counterclaim in the Circuit Court related to a divorce action where Wife had previously filed a notice of nonsuit. Wife moved to dismiss the counterclaim, asserting that she had voluntarily dismissed the action and that the Chancery Court had jurisdiction. The Circuit Court granted her motion, confirming that the Chancery Court had jurisdiction over the divorce and noting that Husband had waived his right to have the case tried in Circuit Court by participating in the Chancery Court trial.

The Circuit Court's order states that the notice of nonsuit filed by the Wife on July 23, 2003, effectively dismissed the case. The Husband appealed decisions from both the Chancery and Circuit Courts, raising several issues. These include whether the Wife's divorce complaint in Circuit Court was pending when she filed a subsequent complaint in Chancery Court, whether the Chancery Court erred in denying Husband access to a transcript, whether the Chancellor should have recused himself, and whether the court's decisions regarding child support, marital property division, alimony, imputed income, and contempt findings against Husband were erroneous. 

The appeal from Circuit Court questions the dismissal of Husband's counterclaim. The standard of review is de novo for legal issues, while factual determinations carry a presumption of correctness unless contradicted by the evidence.

Husband argues that the Circuit Court action was pending, thus alleging that the Chancery Court lacked jurisdiction to hear the case. However, the court found that the real issue was about the doctrine of 'former suit pending,' which maintains that the court first obtaining jurisdiction retains it over concurrent matters. The court agreed with the trial court's conclusion that Husband did not timely raise this issue, having waited several months after the Chancery Court's divorce judgment to contest jurisdiction. Consequently, he is precluded from raising this argument on appeal.

Husband contends that the Chancery Court lacked jurisdiction over the divorce case because a complaint was pending in Circuit Court when he filed his counterclaim. He references Evans v. Perkey, which examined whether the one-year period for reinstating a suit under the saving statute begins with the notice of voluntary dismissal or the court's order of dismissal. In Evans, the court clarified that a plaintiff can voluntarily dismiss a case by simply filing a written notice, independent of judicial approval, although better practice suggests a formal order for record-keeping. The Evans Court distinguished its case from Rickets v. Sexton, noting that while a plaintiff can dismiss without court consent, a formal judgment is still necessary for final adjudication. The Evans Court ruled that the statute of limitations commenced with the entry of the court's order, not the notice of nonsuit. The conclusions drawn from Evans and similar cases do not apply to the current situation, as the primary issue is whether the Circuit Court action remained viable after the Wife's notice of voluntary dismissal. Rickets supports that the plaintiff retains control over dismissal prior to trial.

The case regarding the Wife's claim is concluded, and previous rulings in Evans and Green do not alter the outcome. The Husband appeals the Circuit Court's dismissal of his counterclaim for divorce, arguing that the court lacked authority since the case was still pending when the Wife filed her complaint in Chancery Court. However, it is determined that the Circuit Court was correct in dismissing the counterclaim, as it was filed nearly two years after the Wife's notice of voluntary dismissal. Under the precedent set by Rickets, the case was effectively over upon the Wife’s filing of the notice. A court lacks jurisdiction over counterclaims filed post-voluntary dismissal, as affirmed in Salsman v. Texcor Indus. Inc. 

Additionally, the Chancery Court's refusal to allow the Husband to purchase a transcript of the divorce hearing is addressed. Although the Husband contends he should have the right to obtain the transcript after paying an additional fee, he failed to share in the court reporter’s per diem payment. Under the ruling in Beef N’ Bird of Am. Inc., a party who does not participate in hiring and paying the court reporter lacks a contractual right to require a transcript. The Wife engaged the court reporter and covered the full costs, leaving the Husband without a claim to the transcript. The requirement for him to reimburse the Wife for her expenses does not change the unavailability of the transcript to him.

Finally, the Husband argues that the Chancellor should have recused himself due to remarks that allegedly question his impartiality, as per Tennessee Supreme Court Rule 10, Canon 3(E).

Recusal decisions are at the judge's discretion and can be overturned on appeal only if there is a clear abuse of that discretion. A trial court abuses its discretion when it applies an incorrect legal standard or reaches a logically untenable decision that results in injustice. Judges assess witness credibility during trials, and dissatisfaction with a judge's assessment does not warrant recusal, as this could lead to manipulation of impartiality claims. Bias or prejudice must originate from an extrajudicial source, not from the trial proceedings. 

In this case, the Husband claimed that remarks made by the Chancellor during the trial justified his recusal. The Chancellor's comments about the Husband's family background and personal issues were found to reflect the evidence presented rather than any personal bias against the Husband. Therefore, there was no basis for recusal, and the Chancellor's refusal to step down was deemed appropriate.

Additionally, the Husband contended that the Chancery Court lacked authority to order him to pay child support for the parties' adult disabled son, Ryan, as Ryan was over 18 at the time the divorce complaint was filed.

Wife contends that the court had the authority to mandate support for their adult disabled child, Ryan, who was still in high school, citing T.C.A. 34-1-102(b). Husband counters that the court's authority to initially award support for a disabled child is limited and requires prior jurisdiction before the child turns 18. The court can only continue support for a severely disabled child if there was an existing support order when the child was a minor or if modifying a valid order. While Husband's response indicates a willingness to support Ryan, it does not explicitly acknowledge a legal obligation. At the time of the divorce hearing in October 2004, Ryan was 21 and still in school; however, details about his educational status and whether his class had graduated by the time he turned 18 remain unclear. The law mandates parental support for a child over 18 if they are still in high school until graduation. The current evidence does not sufficiently establish that Husband is legally obligated to support Ryan under the statute. Additionally, Husband raised issues about the division of marital property, alimony, and income imputation, which were factual matters addressed during the divorce hearing. The absence of a transcript from that hearing requires the presumption that the trial court's factual findings are correct. The review is limited to the technical record and the trial court’s memorandum opinion from the hearing.

The court affirms the Chancery Court's findings and decrees, rejecting the Husband's claim of wrongful contempt due to alleged inability to pay court-ordered support and tax debts. The Husband contends that the court's contempt rulings stemmed from personal bias against him and that his status as an alcoholic and drug addict justified his inability to pay. However, the court finds no supporting evidence in the record to substantiate his claims of financial incapacity. Consequently, the judgments of both the Chancery Court and the Circuit Court are upheld, with the cases remanded for enforcement and collection of assessed costs. The appellant, Steven Douglas Sizemore, is responsible for the costs on appeal.