Brown v. Brown ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
WANDA FAYE BROWN, )
) December 30, 1999
Plaintiff/Appellant, ) Marion Circuit No. 12201
) Cecil Crowson, Jr.
v. ) Appellate Court Clerk
)
JOHN CHESTER BROWN, ) Appeal No. M1998-00554-COA-R3-CV
)
Defendant/Appellee. )
APPEAL FROM THE MARION COUNTY CIRCUIT COURT
AT JASPER, TENNESSEE
THE HONORABLE BUDDY D. PERRY, JUDGE
For the Plaintiff/Appellant: For the Defendant/Appellee:
L. Thomas Austin Jerry B. Bible
Dunlap, Tennessee Jasper, Tennessee
AFFIRMED
HOLLY KIRBY LILLARD, J.
CONCURS:
ALAN E. HIGHERS, J.
DAVID R. FARMER, J.
OPINION
This is a divorce case. The trial court divided the marital estate and granted the wife alimony
in futuro. Both the wife and the husband appeal the division of marital property and the award of
alimony. We affirm.
Defendant/Appellee John Brown (“Husband”) and Plaintiff/Appellant Wanda Brown
(“Wife”) separated in October 1996 after twenty-five years of marriage. At the time of trial,
Husband was fifty-seven years old and Wife was fifty-six. Prior to the parties’ separation, Husband
worked as a truck driver for MS Carriers. While Wife worked outside the home in the early years
of the marriage, the parties later agreed that she would quit her job and stay at home to raise their
child. Husband owned a $60,000 home at the time the parties married, but he deeded the home and
the surrounding property to himself and Wife as tenants by the entirety soon after they were married.
Wife testified at trial that approximately twelve to thirteen thousand dollars which she received by
inheritance was used to make improvements to the home during the marriage.
Wife testified at trial that Husband was verbally abusive to both her and the parties’ daughter
throughout the marriage. The daughter, now an adult, corroborated Wife’s allegations of abuse.
Husband testified that while he may have occasionally “cussed” Wife, he did not remember
threatening Wife or their daughter. Husband claimed that Wife was verbally abusive and rude
toward him and toward his family throughout the marriage. Husband admits that he began a
relationship with another woman soon after the parties separated. Wife filed for divorce on October
16, 1996, and Husband counter-claimed for divorce on October 31, 1996.
Husband has a high school education. His average gross salary as a truck driver for 1994 and
1995 was $35,515. In the first ten months of 1996, he had a gross salary of $37,427.00. On the day
Husband and Wife separated, Husband voluntarily quit his job with MS Carriers. Husband admits
that he did not quit because of physical reasons, but testified that he now may have trouble driving
a truck at night because he has glaucoma, an eye condition. Husband testified that his glaucoma is
kept under control by medication and that he is apparently still physically qualified to drive a truck.
Nevertheless, Husband testified that he does not plan to look for a new job in trucking. Husband
took a job as a security guard during the parties’ separation but was fired when he was jailed for one-
hundred twenty days for contempt for failing to pay alimony.
Wife has a high school education but no significant work experience, training, or skills. She
is classified as disabled under Social Security Administration guidelines due to a variety of ailments,
including back problems. At the time of trial, Wife had no independent source of income. However,
after the parties’ separation, she earned approximately sixty dollars per week over a period of six
weeks sitting with an ailing elderly woman. When the elderly woman began feeling better, Wife
stopped sitting with her. Wife claims regular monthly expenses of approximately $1,060.20.
The trial court granted a divorce to Wife on January 8, 1998, and divided the marital assets
and debts between the parties. The trial court initially granted Wife a one-half interest in the marital
home and the surrounding real estate and awarded the other one-half interest to Wife as alimony in
solido. Upon reconsideration, however, the trial court awarded Wife a life estate in Husband’s one-
half interest in the home and real estate and an exclusive right to live in the home. Husband was
awarded the right to use his one-half remainder interest if Wife predeceased him.
Wife was awarded a 1994 Ford Tempo and Husband a 1992 Ford Ranger XLT Pickup, with
each party individually responsible for any indebtedness. The trial court divided equally all debts,
totaling approximately $4,528, as well as all household goods and furnishings.
The trial court awarded to Husband the proceeds from an MS Carrier Retirement Fund,
approximately $17,142, the proceeds from an IRA, approximately $3,000, and the proceeds from
a $70,000 certificate of deposit, which Husband inherited from his parents. Wife was awarded the
proceeds of the parties’ savings account, approximately $1,492, and the proceeds of an IRA.
Finally, the trial court ordered Husband to pay Wife $200 per week alimony in futuro. The
trial court credited Husband $320 per month for an annuity payment assigned to Wife by Husband
under a prior court order.
Both parties appeal the trial court’s decree. Wife filed a notice of appeal on September 21,
1998. The notice named Wife as appellant, Husband as appellee, and gave the addresses of both
parties. It listed Husband’s attorney and named the trial court, the trial judge, the number and file
date of the judgment from which she appealed, and the court in which the appeal was filed. Wife’s
attorney did not sign the notice of appeal but signed as surety for the accompanying appeal bond.
Subsequently, Wife filed a motion with the trial court asking that Husband be required to
provide Wife a copy of the trial transcript. Wife’s motion proposed that Wife pay Husband one-half
of the court reporter’s appearance fee. The trial court ordered that Wife be allowed to make a copy
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of the transcript provided she paid “the per diem of the taking of the transcript and for the cost of the
transcript itself” and that she furnish a copy of the transcript to Husband.
On appeal, Husband argues that Wife failed to properly file her notice of appeal. Husband
also claims that the trial court erred in granting a divorce to Wife. Both Husband and Wife challenge
the trial court’s division of property and its alimony award.
We address first Husband’s claim that Wife failed to properly her notice of appeal. Husband
contends that Wife’s notice is insufficient under Rule 11.01 of the Tennessee Rules of Civil
Procedure and Rule 24 of the Tennessee Rules of Appellate Procedure because it fails to give the
date and the name and signature of Wife’s attorney.
Rule 11.01 of the Tennessee Rules of Civil Procedure states that “[a]n unsigned paper shall
be stricken unless omission of the signature is corrected promptly after being called to the attention
of the attorney or party.” Rule 3(f) of the Tennessee Rules of Appellate Procedure states that a
“notice of appeal shall specify the party. . .taking the appeal, shall designate the judgment from
which relief is sought, and shall name the court to which the appeal is taken. An appeal shall not be
dismissed for informality of form or title of the notice of appeal.”
Wife’s notice of appeal names Wife as appellant, designates the number and file date of the
judgment appealed from, and names the court in which the appeal was filed. Wife’s attorney did not
sign the notice of appeal, as required under Rule 11.01 of the Tennessee Rules of Civil Procedure
but signed the appeal bond accompanying the notice. Under these circumstances, the failure of
Wife’s attorney to sign the notice of appeal does not prevent this Court from hearing Wife’s appeal.
Husband also argues that the trial court erred in ordering Husband to permit Wife to make
a copy of the trial transcript, because the order allows Wife a copy of the transcript when she did not
assist Husband in paying the court reporter’s appearance fee in the first place. Husband argues that
the transcript became Husband’s attorney work product when Wife refused Husband’s request before
trial to split the appearance fee.
Under the trial court’s order, Wife could make a copy of the trial transcript if she paid “the
per diem of the taking of the transcript and for the cost of the transcript itself” and if she furnished
a copy of the transcript to Husband. Husband points to no manner in which this order unfairly
prejudices him. Moreover, Husband’s argument that the trial transcript is “work product” is
sophistic at best; a transcript of a public proceeding such as trial cannot be deemed work product.
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See Tenn. R. Civ. P. 26.02; Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 689 (Tenn.
1994) (work product materials must have a veil of confidentiality).
Husband next contends that the trial court erred in granting the divorce to Wife. He
maintains that Wife was verbally abusive toward him and his family members. Husband argues that
Wife failed to offer sufficient evidence of recent altercations between the parties for which Husband
was at fault.
Wife testified at trial that Husband was verbally abusive to her and to the parties’ daughter.
She stated that Husband’s abusive behavior occurred intermittently from the beginning of the parties’
marriage up to the time of the parties’ separation. The parties’ adult daughter corroborated Wife’s
allegations. In his testimony, Husband admitted that he may have occasionally “cussed” Wife.
Clearly Wife proffered substantial evidence of Husband’s verbal abuse. The trial court’s
determination of fault turned on its assessment of the witnesses’ credibility. When the resolution
of an issue in a case depends upon the truthfulness of witnesses, the trial judge who has the
opportunity to observe the witnesses in their manner and demeanor while testifying is in a far better
position than this Court to decide that issue. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415
(Tenn. 1995). Based on our review of the evidence, we cannot conclude that the trial court erred in
awarding the divorce to Wife. The decision of the trial court is affirmed on this issue.
Husband and Wife both challenge the trial court’s division of the parties’ marital estate.
Wife argues that the trial court should have awarded her the parties’ entire interest in the marital
home and surrounding property. She contends that such an award is necessary to offset the large
amount of separate property owned by Husband. Wife argues that her age, lack of training and
skills, and physical condition cause her to be less employable and to have a lower earning capacity
than Husband. Therefore, she maintains that the trial court should not have assigned to her the
parties’ indebtedness on her car and one-half of the parties’ remaining debts.
Husband argues that the trial court erred in dividing the parties’ marital property because
most of the property was either properly classified as Husband’s separately-owned property or was
acquired by gift from Husband’s parents or relatives.
Tennessee Code Annotated § 36-4-121(c) requires the trial court to consider several factors
in making an equitable division of marital property, including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning
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capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training
or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and
income;
(5) The contribution of each party to the acquisition, preservation, appreciation or
dissipation of the marital or separate property, including the contribution of a party
to the marriage as homemaker, wage earner or parent, with the contribution of a party
as homemaker or wage earner to be given the same weight if each party has fulfilled
its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is
to become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-4-121(c) (1996). Appellate review of a division of marital property is de novo
upon the record with a presumption of the correctness of the trial court’s findings of fact. See
Tenn.R.App.P. 13(d). The trial court’s division of property is altered on appeal only if the trial court
misapplies the law or if the evidence preponderates against the trial court’s factual findings. See
Wade v. Wade, 897 S.W.2d 702, 715 (Tenn.App. 1994).
In this case, the primary asset in the marital estate is the marital home and the surrounding
property. The only other asset of significant value is the $70,000 certificate of deposit which
Husband inherited from his parents. Both parties argue that they should have been awarded sole
ownership of the home. The trial court’s award to Wife of a life interest in the marital home helps
offset the trial court’s award of the $70,000 certificate of deposit to Husband as his separate property.
The remainder of the marital property was essentially divided equally.
Considering the evidence presented, we cannot conclude evidence preponderated against the
trial court’s property division. The decision of the trial court is affirmed on this issue.
Finally, Husband and Wife both contest the trial court’s award of alimony. Wife argues that
the amount of the alimony award is insufficient in light of her regular monthly expenses and
Husband’s ability to pay. Wife contends that the alimony amount should be based upon Husband’s
prior gross monthly income as a truck driver.
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Husband admits that he quit his job as a truck driver the day the parties separated, but argues
that he can work as a truck driver only so long as his glaucoma condition can be controlled. He
argues further that his age and limited education will likely prevent him from finding employment
with a salary as high as he received as a truck driver. Husband contends that the alimony amount
is excessive in light of Wife’s work caring for the elderly woman after the parties’ separation.
The factors relevant in making an award of alimony are similar to those considered in making
an equitable division of marital property. See Tenn. Code Ann. §§ 36-4-121(c) (1996) and 36-5-
101(d)(1) (Supp. 1999); see also Dellinger v. Dellinger, 958 S.W.2d 778, 781 (Tenn.App. 1997).
The need of the obligee spouse and the obligor spouse’s ability to pay are the most critical factors
in awarding alimony. See Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn.App.1993). In addition, the
relative fault of the parties in the breakup of the marriage may be considered. See Gilliam v.
Gilliam, 776 S.W.2d 81, 86 (Tenn.App. 1988).
The trial court is afforded wide discretion concerning the award of alimony, and an appellate
court should reverse the trial court’s findings only in instances in which this discretion “has
manifestly been abused.” See Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn.App. 1989); Ford
v. Ford, 952 S.W.2d 824, 827 (Tenn.App. 1997).
The fault for the breakup of the marriage and Wife’s need are factors favoring an adequate
alimony award. The trial court awarded the divorce to Wife, implicitly finding that Husband was
at fault for the divorce. However, the amount of the monthly alimony award leaves Wife with a
$260.20 shortfall when it is applied to her monthly expenses.
However, Husband’s ability to pay a greater amount of alimony is uncertain. Although
Husband did not quit his job as a truck driver because of physical infirmity, he now testifies that his
glaucoma condition inhibits his ability to drive a truck for a living. He admits that the glaucoma is
controlled by medication and that he is apparently still physically qualified to hold a license.
The award of alimony presents a difficult issue. The evidence clearly supports the trial
court’s implicit finding that Husband was at fault for the divorce. The fact that Husband quit his job
as a truck driver the day the parties separated suggests that it was motivated by a desire to avoid
paying Wife significant alimony. However, regardless of Husband’s original motivation for quitting
his truck driver job, the trial court was required to determine Husband’s ability to pay alimony as of
the date of trial. This determination depended in part on the trial court’s assessment of Husband’s
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credibility on his ability to work as a truck driver or in another position with comparable pay. When
the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge who
has the opportunity to observe the witnesses in their manner and demeanor while testifying is in a
far better position than this Court to decide that issue. See McCaleb, 910 S.W.2d at 415 (Tenn.
1995). We must accord great weight to the trial court’s determination of credibility. See id.; see
also In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
From our review of the record, and in view of the high standard of review for an award of
alimony, we cannot conclude that the trial court’s award of alimony in this case amounted to an
abuse of discretion. The decision of the trial court is affirmed on this issue.
The decision of the trial court is affirmed. Costs are taxed equally to both parties, for which
execution may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.
DAVID R. FARMER, J.
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