Sherri Vaughn v. Nathan Vaughn ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 12, 2001 Session
SHERRI LYNN VAUGHN v. NATHAN ANTHONY VAUGHN
Direct Appeal from the Circuit Court for Hamilton County
No. 99D2432 Hon. L. Marie Williams, Circuit Judge
FILED AUGUST 7, 2001
No. E2000-02281-COA-R3-CV
In this divorce case, the husband has appealed the award of alimony, child visitation and support,
and the Court’s division of marital property. We affirm.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.
David W. Wallace and C. Leland Davis, Chattanooga, Tennessee, for Appellant.
Robert D. Bradshaw, Chattanooga, Tennessee, for Appellee.
OPINION
In this divorce action the husband has raised the following issues on appeal:
1. Whether the Trial Court erred by awarding the plaintiff alimony in the
amount of $390.00 a month for a period of five years?
2. Whether the Trial Court erred in limiting the defendant’s visitation with his
children, and deviating from the child support guidelines?
3. Whether the Trial Court inequitably distributed the parties’ assets and
liabilities?
At the trial of the divorce, the husband stipulated that he had an affair, and the
evidence developed that the husband and wife were married in 1993 and had two children who were
six and three years old at the time of trial. The parties’ home had an approximately $57,000.00
mortgage, and the wife had an automobile and the husband a truck, which were approximately of the
same value. The parties also had a joint savings account from which husband withdrew $5,000.00.
The wife testified the husband’s income in 1998 was $39,342.00 and that her income
was $19,072.00, and that she could not provide for herself and the children on her income without
relying on her credit card, and that balance was approximately $12,000.00 at the time of trial.
The husband testified that his base salary was $34,000.00 per year, and that overtime
was not available like it had been previously. He further testified that his trailer payments were
$360.00 per month, and that his trailer was on land which a school provided for his use in exchange
for his providing security for the school. The school provided his gas and water, as well.
At the conclusion of the trial, the Trial Court determined that the wife’s monthly
living expenses were modest, and generally less than the husband’s, and further that the husband had
spent significant marital funds on entertaining his paramour. The Court also found the husband’s
earning capacity was historically twice as much as the wife’s and that the husband had been able to
make significant monthly contributions to his pension, and that he should also be imputed income
from the land, utilities and water provided by the school in exchange for his acting as a security
guard. The Court found that the marriage was of moderate duration and that fault should be
considered, as well as the fact that the household had been primarily the responsibility of the wife.
The Court awarded the wife $390.00 per month as alimony, for five years. The house was ordered
to be maintained in the joint name of the parties until the youngest child reached age 18 or completed
high school, and the house would then be sold and the equity be divided. Each party is required to
pay one-half of the house payment, and the wife is responsible for repairs, maintenance and
insurance. The final decree ordered the husband to pay the wife’s attorney’s fees and husband was
ordered to pay guideline child support in the amount of $783.00 per month.
The award of alimony is in the nature of rehabilitative alimony, and a trial court has
“wide discretion” regarding an award of alimony, since the amount and duration are determined by
the court’s findings of fact in consideration of the statutory factors contained in Tenn. Code Ann.
§36-5-101(d)(1). Siegel v. Siegel, 1999 WL 135090 (Tenn. Ct. App. March 5, 1999). Awards of
alimony are upheld, unless the trial court has manifestly abused its discretion. Id., citing Hanover
v. Hanover, 775 S.W.2d 612 (Tenn. Ct. App. 1989). Taking into account the statutory factors, and
especially the wife’s needs and the husband’s earning capacity, we hold the Trial Court’s findings
are supported by the evidence, and affirm the Trial Court’s award of alimony. Tenn. R. App. P.
13(d).
The husband argues the Trial Court erred in the visitation award, and that he should
be granted more time with the children. The law is well-settled, however, that “the details of custody
and visitation with children are peculiarly within the broad discretion of the trial judge.” Suttles v.
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Suttles, 748 S.W.2d 427, 429 (Tenn. 1988); Helson v. Cyrus, 989 S.W.2d 704 (Tenn. Ct. App. 1998).
In this case, the court adopted a liberal visitation plan which allows the husband
visitation with the children every other weekend, additional visitation time during the week in
between, plus holiday visitation and three weeks during the summer. We find no abuse of discretion
in the award of visitation as determined by the Trial Judge.
Next, Husband takes issue with the amount of child support set by the Trial Court,
stating that the Trial Court erroneously deviated from the child support guidelines. The Husband
testified that his base salary was $2,892.00 per month gross at the time of trial, and that overtime was
no longer available as it had been in 1998. Based upon a gross monthly income of $2,892.00,
husband’s child support obligation would be somewhat less than the Trial Court’s award. However,
the Trial Court imputed additional income for his use of the land for his trailer and utilities by the
school, and while the Court did not place an exact value on these benefits, it was proper to impute
income to the husband for these benefits, as such is expressly allowed by the guidelines. Tenn.
Comp. R. and Regs. Ch. 1240-2-4-.03(3)(a). It was also proper for the court to take an average of
husband’s income for the past two years in making an initial child support award. Tenn. Comp. R.
and Regs. Ch. 1240-2-4-.04(1)(e); Berryhill v. Rhodes, 21 S.W.3d 188 (Tenn. 2000); Siegel v.
Siegel, 1999 WL 135090 (Tenn. Ct. App. March 5, 1999); Yates v. Yates, 1997 WL 746377 (Tenn.
Ct. App. Dec. 4, 1997). Taking into account the imputed benefits and his stated earning capacity,
we hold that the child support awarded is authorized by the guidelines.
Finally, the husband contends that the Trial Court divided the parties’ property
inequitably, but his only examples of such inequity were that the Court gave wife a judgment for half
of the $5,000.00 which husband removed from the parties’ joint savings, and husband was ordered
to pay wife’s attorney’s fees, as well as being ordered to pay some of her credit card debt, part of
which was for attorney’s fees.1
The law is well settled that a property division does not have to be mathematically
equal to be equitable. Ellis v. Ellis, 748 S.W.2d 424 (Tenn. 1988.) The standard of review of a trial
court’s property valuation/distribution is de novo with a presumption of correctness, unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d); Mondelli v. Howard, 780 S.W.2d 769(Tenn. Ct. App. 1989). The trial court has broad discretion in such matters, and its decision is given
great weight on appeal. Mondelli.
The parties’ bank accounts, retirement accounts, and personalty were evenly divided.
1
The wife objected to consideration of husband’s issue regarding division of assets and
liabilities, because the husband failed to include tabulation of property in his initial brief, as required
by Rule 15 of the Rules of the Court of Appeals. He did, however, include such tabulation in his
reply brief, and in our discretion we entertained the issue. See Word v. Word, 937 S.W.2d 931(Tenn. Ct. App. 1996).
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Wife was awarded her car, and husband’s truck was not mentioned, but presumably it was awarded
to him. The wife was given a judgment for half of the $5,000.00 which was removed from the
parties’ joint savings account, as well as giving the wife half of the value of husband’s savings
account, which purportedly contained the remainder of the $5,000.00. (The husband had testified
there was $1,400.00 in his savings account.) There was no accounting of the funds by the husband
for the funds placed in his account, but the husband had paid his attorney a $5,000.00 retainer, and
had spent money on meals, gifts, and trips with his girlfriend, as well as expending monies for setting
up his new residence.
The Trial Court’s award was appropriate on the evidence.
The husband also argues he should not have been required to pay 68% of his wife’s
credit card debt. The Trial Court expressly found that the wife’s expenditures were reasonable and
necessary and that the debt she incurred was marital, and that the credit card debt reflected household
bills, expenses for herself and the children, as well as paying for daycare and other expenses. We
affirm the Trial Court’s decision on the pro-ration of the credit card debt. See Mondelli.
We affirm the Judgment of the Trial Court, and remand with the cost of the appeal
assessed to Nathan Anthony Vaughn.
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HERSCHEL PICKENS FRANKS , J.
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