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Kahn v. Kahn6/6/2005
Facts and Procedural History
Randa L. Kahn ("Wife" or "Appellee") and Stanley D. Kahn ("Husband" or "Appellant") were married on May 9, 1982. It was the first marriage for both parties. Husband and Wife adopted two children during the marriage: Stephen D. Kahn ("Son") (d.o.b. 6/28/1991) and Emily D. Kahn ("Daughter") (d.o.b. 6/3/1993). Though he has improved, Son previously exhibited behavioral problems which resulted in his suspension from school on two occasions. He has been diagnosed with attention deficit hyperactivity disorder and takes medication for this condition as well as anxiety. At four and a half months old, Daughter was diagnosed with cancer and received treatment at St. Jude Children's Hospital. Husband and Wife alternated staying in the hospital with Daughter while she received treatment.Daughter no longer suffers from cancer and excels in school.
Wife holds a bachelor's degree in public relations and graphic design. She is now employed as a general manager for the Memphis Flea Market and earns approximately $65,000.00 per year. Husband attended college but never graduated. He has since worked in the area of photograph equipment repair. One such venture begun by Husband was a business called Stan's Photos, an unincorporated business. However, Husband ran up a debt of approximately $23,000.00 owed to the IRS for failure to pay an employees' withholding tax for the last three quarters before the business was shut down. Though Husband's parents gave Husband the money to pay off the debt to the IRS, he did not do so. Additionally, during the marriage, Husband incurred a business loan of $30,000.00 with Morgan Stanley. Since the closing of Stan's Photos, Husband has created two new businesses: Photo Applications, which offers the service of optical equipment repair, and Graphic Applications, which concerns digital photography. Husband testified that thirty-five percent (35%) of his gross sales are the profits from his business. Husband's gross receipts were $218,214.00 for 2001 and $199,000.00 for 2002.
The largest asset of the marital estate is the marital residence, having a value of $220,500.00 with a mortgage of $95,621.00. Wife has paid the majority of house notes as well as the household expenses such as utilities and telephone. After Wife filed her complaint for divorce, Husband was ordered to pay the bills associated with the marital residence. When he failed to do so in a timely manner each month, Memphis Light, Gas & Water threatened to cut off utility services to the home, and the telephone was cut off on four occasions. Additionally, Husband's grandmother gave Husband a parcel of land located on Summer Avenue (the "Summer property") around 1995 valued at $30,800.00. Further, Wife has $60,796.03 in a 401(k) retirement plan.
Wife filed her complaint for divorce on June 15, 2001, citing irreconcilable differences as a ground for divorce. Husband answered and counter-claimed for divorce citing irreconcilable differences and inappropriate marital conduct as grounds. On July 9, 2002, the parties entered into a consent order appointing Patricia Worley the guardian ad litem for their children. After a hearing, the trial court awarded the parties a divorce, divided the marital estate and debt, named Wife the primary residential parent for Son and Daughter, ordered Husband to pay the entire balance of the guardian ad litem fees in the amount of $4,154.00, and ordered Husband to pay child support in the amount of $1,526.00 per month. Husband now appeals to this Court and presents the following issues for our review:
I. Whether the trial court erred in its division of the marital estate; and
II. Whether the trial co
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