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Mahan v. Mahan11/15/2000
In this divorce case, the husband appeals the award of custody of the children to the wife, the admission of certain evidence at trial, and the redistribution of marital property on a post-judgment motion following his bankruptcy. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
Patricia J. Cottrell, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and William C. Koch, Jr., joined.
OPINION
I. Background and Procedural History
Patrick Ryan Mahan ("Husband") and Tonya Sue Hurst Mahan ("Wife") married in 1983. They have two children, a daughter, born in 1985, and a son, born in 1987. Husband was in the Army for the duration of the marriage and as a result, the family moved periodically. While Husband was stationed at Ft. Campbell, Wife became friendly with Cindy Fernandez. Apparently Ms. Fernandez was experiencing some personal problems and, at Wife's suggestion, the parties invited Ms. Fernandez and her children to live with them for a while.
Wife discovered a note in Ms. Fernandez's room, in Husband's handwriting, asking for a "good luck kiss . . . about 3:30 am." She then recalled another incident in which she discovered Husband walking away from Ms. Fernandez's room in the early morning hours, claiming he "thought he heard the cat." Wife insisted that Ms. Fernandez move out. Shortly thereafter, Wife took the children and went to stay with her parents in Mississippi.
Wife returned to Tennessee for a hearing on temporary custody of the children. She testified that the trial court gave her the option of remaining in the marital home with the children or surrendering temporary custody to Husband. She chose to leave the children with Husband and return to Mississippi, stating that she could not stand being near Husband at that time. She later returned to Tennessee, and the parties attempted a reconciliation. Husband was baptized, and the parties joined a church. The pastor of the church, Mr. Mulberry, testified over Husband's objection, that Husband had asked for his help in reconciling with Wife. The reconciliation was ultimately unsuccessful and the parties separated again.
Wife introduced phone records showing that Husband continued to contact Ms. Fernandez while he was attending training in Alabama, but during their supposed reconciliation. Witnesses testified that Husband had other extramarital relations and that he interfered with Wife's visits with the children.
The court divorced the parties on grounds of Husband's inappropriate marital conduct, awarded custody to Wife, and gave her most of the parties' personal property. Husband was ordered to pay child support and to maintain a life insurance policy for the benefit of the children. Husband was awarded the marital home, which had some equity, and was assigned most of the debts "in lieu of alimony." Wife's attorney drew up the order, stating that the court found that Husband had made "confessions of adultery to his wife" and that Wife was to be the "sole executor" of Husband's life insurance policy as long as he had a child support obligation. That order was signed by the trial court and filed. Husband's attorney did not file an objection to any portions of the proposed order, but instead allowed the order to be entered and sought to correct the order through a post-judgment motion to alter or amend.
In that motion, Husband asserted that "confessions of adultery" should be stricken and that Wife should not be named as the executor of the insurance policy which he was ordered to maintain for the benefit of the children. A few we
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