Facts: Husband and Wife divorced after 25 years of marriage. Ten years before their divorce, Wife received disabling back and neck injuries from a car accident.
As part of the division of marital property, the trial court awarded the marital residence to Wife and required her to pay the mortgage.
Husband moved to alter or amend asking that Wife be ordered to refinance the mortgage solely into her name or sell the property to satisfy the mortgage.
The trial court granted Husband’s request in part by ordering Wife to make reasonable attempts to refinance the mortgage. Wife was directed to provide Husband with documentation from three banks or mortgage companies showing her attempts to refinance. Wife provided documentation as ordered, but Wife could not refinance the mortgage.
On Appeal: The Court of Appeals affirmed the trial court.
Husband argued the trial court erred by requiring Husband to remain on the mortgage for the marital residence by failing to order the sale of the home once Wife could not refinance the property.
Unfortunately, Husband cited no legal authority to support his argument. Because it is not the Court’s job to construct a litigant’s arguments for him or her, the Court deemed the issue waived. Still, the Court commented:
Given Husband’s lack of effort to support his argument, we are not persuaded by Husband’s contention that he is wholly without recourse. Husband, as we see it, does have recourse if Wife defaults on the mortgage payments. For example, as Wife concedes in her brief, she may be found in contempt of court if she fails to pay the mortgage on the marital home. Further, if the property were foreclosed it would satisfy the mortgage, although we concede that such an option would likely negatively impact both parties’ financial health. Accordingly, we conclude that Husband does, in fact, have recourse if Wife fails to satisfy the mortgage payment.
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Here, the trial court ordered Wife to “reasonably attempt” to refinance the debt on the marital home. The trial court also ordered Wife to provide Husband with documentation from three banks or mortgage companies that she attempted to refinance the home. It is undisputed that Wife complied with this order. Husband, however, argues that the trial court erred in not ordering a sale of the home after Wife was unable to refinance the mortgage because it rendered the assignment of debts inequitable. Although Husband asserts that the trial court should have ordered a sale of the marital home, Husband provides no proof that such a sale was economically feasible. . . . [W]e conclude that the trial court did not err by declining to force a sale of the marital home after Wife could not refinance the mortgage.
The trial court’s judgment was affirmed.
K.O.’s Comment: (1) While the Court opted not to provide legal support for Husband’s argument, I will. Two cases that support Husband’s argument are Dobbs and Mobley. While I’m at it, two cases that support Wife’s position are Berkshire and Henegar.
(2) One of the statutory factors Tennessee courts must consider when equitably dividing marital property is “the relative ability of each party for future acquisitions of capital assets . . . .” How do you suppose leaving Husband’s name on the mortgage, i.e., leaving the mortgage debt on his credit report, affects his ability to get a loan?
(3) At oral argument, Husband’s lawyer described Wife, age 60, as “elderly.” In a footnote, Judge Stafford cheekily commented that he and his learned colleagues “do not necessarily agree that reaching the age of 60 qualifies an individual as ‘elderly,’ lest this entire panel meet the definition.”