Donna Seals v. Larry Seals ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 2, 2002 Session
DONNA LYNN SEALS v. LARRY CLYDE SEALS
Appeal from the Chancery Court for Hamilton County
No. 00-360 Howell N. Peoples, Chancellor
FILED NOVEMBER 26, 2002
No. E2002-00100-COA-R3-CV
Donna Lynn Seals (“Wife”) and Larry Clyde Seals (“Husband”) were divorced in 2001, after
seventeen years of marriage. The parties have one minor child (“Child”). Wife was primarily a stay-
at-home mother during the marriage. Husband is employed as a general superintendent by Williams
Union Boiler. The Trial Court found Husband’s earnings for 2001 to be $117,000 in regular wages
plus $16,380 in per diem. The Trial Court awarded Wife the parties’ home in Hamilton County as
alimony in solido and further ordered Husband to pay rehabilitative alimony in the amount of $1,365
per month for forty-two consecutive months. The Trial Court also ordered Husband to pay $2,063
per month in child support, which is an upward deviation due to Husband’s absence of overnight
parenting time since December 2000. Husband filed a post-trial Tenn. R. Civ. P. 52.01 motion for
findings of fact. The Trial Court addressed this motion and entered its Final Decree of Divorce in
November 2001. Husband appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P. J.,
and HERSCHEL P. FRANKS , J., joined.
Selma Cash Paty, Chattanooga, Tennessee, for the Appellant, Larry Clyde Seals.
John R. Meldorf, III, Hixson, Tennessee, for the Appellee, Donna Lynn Seals.
OPINION
Background
After seventeen years of marriage, Donna Lynn Seals (“Wife”) and Larry Clyde Seals
(“Husband”) were divorced in 2001. The parties have one minor child (“Child”).
Wife, who has been primarily a stay-at-home mother, was working for the Tennessee
Valley Authority (“TVA”) when the parties married. She was working out a three-month lay off
notice at the time she learned she was pregnant. Although Wife was offered another position at
TVA, she declined this offer. Instead, Husband told Wife that no wife of his had to work, and
suggested she quit work. Wife took this suggestion to heart. Since then, Wife’s only employment
outside the home involved work she did in connection with a small antique business the parties
started in 1986.
At the time of trial, Husband was employed as a general superintendent by Williams
Union Boiler, a division of Williams Union Power, and was working at the TVA plant in Paradise,
Kentucky. In addition to his regular wages, which the Trial Court found to be $117,000 for 2001,
Husband receives a per diem because his home is in Chattanooga, Tennessee and his duty station is
in Kentucky. The Trial Court found Husband’s per diem earnings for 2001 to be $16,380.
In 1986, the parties started a small antique business. They rented a booth in a mall,
although neither party had to staff the booth. The price of each antique was affixed to the item and
a cashier at the mall collected money from customers. Husband and Wife shared equally in traveling
around to buy antiques for their booth. Wife kept the books.
Wife owned a vehicle prior to the marriage. At some point during the marriage, Wife
borrowed approximately $6,000 against this vehicle and gave the money to Husband so he could pay
a premarital income tax obligation. When Wife left her job at TVA, she chose to receive her
retirement money rather than continue with her retirement plan. Wife also received a severance
package. She used a portion of the severance package to pay off the loan against her vehicle.
In the Final Decree of Divorce filed November 19, 2001, the Trial Court found Wife
was in need of both alimony in solido and rehabilitative alimony. The Trial Court awarded Wife the
parties’ home in Hamilton County as alimony in solido and further ordered Husband to pay
rehabilitative alimony in the amount of $1,365 per month for forty-two consecutive months. The
Trial Court also ordered Husband to pay $2,063 per month in child support, which included an
upward deviation based upon Husband’s absence of overnight parenting time since December of
2000.
Post-trial, Husband filed a Tenn. R. Civ. P. 52.01 motion requesting findings of fact
regarding Husband’s income and the amount of his per diem; Wife’s income and/or earning capacity;
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and the amount of child support that would have been ordered under the child support guidelines.
The Trial Court’s Order of November 27, 2001, as later amended, addressed Husband’s Rule 52.01
Motion. The Trial Court denied the motion and specifically held that the findings contained in its
Final Decree were sufficient to comply with the Tennessee Rules of Civil Procedure. In the Final
Decree, the Trial Court specifically found Husband’s earnings for 2001 were $117,000 in regular
wages and $16,380 in per diem, and the child support obligation pursuant to the guidelines to be
$1,611 per month. The Trial Court did not state specific figures for Wife’s income and/or earning
capacity in the final decree.
Discussion
On appeal, Husband raises the following issues: (1) did the Trial Court err in setting
the amount of child support by considering Husband’s per diem as income to him and by making an
upward deviation based upon Husband’s failure to exercise visitation; (2) did the Trial Court err in
failing to make a finding of fact as requested in Husband’s Tenn. R. Civ. P. 52.01 motion; (3) did
the Trial Court err in awarding Wife $31,859 from the Boilermaker-Blacksmith National Pension
Trust; (4) did the Trial Court err in awarding Wife the marital home as alimony in solido, and; (5)
did the Trial Court err in setting the amount of rehabilitative alimony. Wife raises the additional
issue of whether this appeal is frivolous and, therefore, she should be awarded attorney’s fees and
costs for being required to defend.
Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.
Rule App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions
of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.
Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
Before we consider the issues on appeal, we first address Husband’s motion to
consider post judgment facts. The motion requests this Court to consider that, by the Trial Court’s
August 12, 2002 Order, the primary residence of the Child now is with Husband, and, therefore,
Husband no longer is obligated to pay child support to Wife. Wife admits these facts are true. In
the exercise of our discretion, we grant the motion to consider post judgment facts. Husband’s issue
regarding whether the Trial Court erred in setting the amount of child support is moot post August
12, 2002 as Husband has no existing obligation to pay any future child support. Despite Husband’s
well-stated argument that we still should consider this issue as the minor child may yet primarily
reside with Mother at some future time, such event may or may not happen. Therefore, we decline
to address this issue.
We next address Husband’s issue regarding whether the Trial Court erred in failing
to make a finding of fact in response to Husband’s Tenn. R. Civ. P. 52.01 motion. Tenn. R. Civ. P.
52.01 provides: “In all actions tried upon the facts without a jury, and upon request made by any
party prior to the entry of judgment, the court shall find the facts specially and shall state separately
its conclusions of law thereon and direct the entry of the appropriate judgment.” Tenn. R. Civ. P.
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52.01. “Findings of fact and conclusions of law rendered by the trial court ‘promote[] a just and
speedy determination of the issues,’ and facilitate appellate review by the courts and appellate case
preparation by the parties.” Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct. App. 1990) (quoting
Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 902 (Tenn. 1973)).
“It is not necessary for the trial court to treat separately each fact or question at issue
so long as his findings as a whole cover all relevant facts necessary to a determination of the case.”
Hodge v. Provident Life & Accident Ins. Co., 664 S.W.2d 297, 300 (Tenn. Ct. App. 1983). The
Middle section of this Court has held:
[T]he failure of the trial court to render findings of fact and/or conclusions of law is
not necessarily reversible error. As stated in Hill, “Rule 52.01, Rules of Civil
Procedure, does provide for findings of fact, but there is no provision as to what facts
must be found and what need not be found specially. Evidently, some discretion
must reside in the trial judge in this regard.”
Bruce, 801 S.W.2d at 104-05 (quoting Metro. Dev. & Hous. Agency v. Hill, 518 S.W.2d 754, 769
(Tenn. Ct. App. 1974)).
A review of the record discloses the Trial Court did make specific findings regarding
Husband’s income, the amount of his per diem, and the amount of child support that would have
been ordered under the child support guidelines without any upward deviation. The only finding
requested, and not specifically made, involved Wife’s income and/or earning capacity. The Trial
Court did, however, find Wife was in need of both rehabilitative spousal support and spousal support
in solido. The evidence in the record does not preponderate against this finding. The Trial Court’s
findings, as a whole, covered all of the relevant facts necessary to a determination of the case.
Therefore, we hold the Trial Court properly exercised its discretion in making its findings of fact.
We affirm on this issue.
We next discuss the Trial Court’s award to Wife of $31,859 from the Boilermaker-
Blacksmith National Pension Trust. Tenn. Code Ann. § 36-4-121(c) sets out factors for a court to
consider when making an equitable distribution of property. Tenn. Code Ann. § 36-4-121 (2002).
These factors include such things as the duration of the marriage; the age, physical and mental health
of the parties; and the employability, earning capacity, financial liabilities and needs of the parties.
Id. This Court has stated:
A trial court has wide discretion in dividing the interest of the parties in marital
property. As noted by this Court in King v. King, 986 S.W.2d 216, 219 (Tenn. Ct.
App. 1998), when dividing marital property: ‘The trial court’s goal in every divorce
case is to divide the parties’ marital estate in a just and equitable manner. The
division of the estate is not rendered inequitable simply because it is not
mathematically equal, or because each party did not receive a share of every item of
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marital property....In the final analysis, the justness of a particular division of the
marital property and allocation of marital debt depends on its final results.’
Fritz v. Fritz, No. E2001-00145-COA-R3-CV, 2002 Tenn. App. LEXIS 353, at *7 (Tenn. Ct. App.
May 13, 2002), no appl. perm. appeal filed, (citations omitted).
Although Husband argues correctly on appeal that the court may not consider fault
when dividing marital property, we find nothing in the record to suggest the Trial Court considered
fault when making the division in this case. Rather, the evidence preponderates in favor of the Trial
Court’s division of property, including the award to Wife of $31,859 from the Boilermaker-
Blacksmith National Pension Trust. We defer to the Trial Court’s discretion on this issue and hold
its division of marital property was not inconsistent with Tenn. Code Ann. § 36-4-121(c) and was
an equitable distribution. We affirm on this issue.
As far as Husband’s issues regarding whether the Trial Court erred in awarding Wife
the marital home as alimony in solido, and in setting the amount of rehabilitative alimony, we note,
“[t]here are no hard and fast rules for spousal support decisions.” Manis v. Manis, 49 S.W.3d 295,
304 (Tenn. Ct. App. 2001). As this Court stated in Manis,
Trial judges have broad discretion to determine whether spousal support is needed
and, if so, its nature, amount and duration. Appellate courts are generally disinclined
to second-guess a trial judge’s spousal support decision unless it is not supported by
the evidence or is contrary to the public policies reflected in the applicable
statutes....Spousal support decisions hinge on the unique facts of the case and require
a careful balancing of the factors in Tenn. Code Ann. § 36-5-101(d)(1). In virtually
every case, the two most important factors are the demonstrated need of the
disadvantaged spouse and the obligor’s [sic] spouse’s ability to pay.
Manis, 49 S.W.3d at 304 (citations omitted). Discussing the intent behind alimony, our Supreme
Court has held: "the purpose of spousal support is to aid the disadvantaged spouse to become and
remain self-sufficient and, when economic rehabilitation is not feasible, to mitigate the harsh
economic realities of divorce." Burlew v. Burlew, 40 S.W.3d 465, 470-71 (Tenn. 2001) (quoting
Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998)).
Tenn. Code Ann. § 36-5-101(d)(1) provides:
In determining whether the granting of an order for payment of support and
maintenance to a party is appropriate, and in determining the nature, amount, length
of term, and manner of payment, the court shall consider all relevant factors,
including:
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(A) The relative earning capacity, obligations, needs, and financial resources of each
party, including income from pension, profit sharing or retirement plans and all other
sources;
(B) The relative education and training of each party, the ability and opportunity of
each party to secure such education and training, and the necessity of a party to
secure further education and training to improve such party’s earning capacity to a
reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to, physical
disability or incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek employment
outside the home because such party will be custodian of a minor child of the
marriage;
(G) The separate assets of each party, both real and personal, tangible and intangible;
(H) The provisions made with regard to the marital property as defined in § 36-4-
121;
(I) The standard of living of the parties established during the marriage;
(J) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and tangible
and intangible contributions by a party to the education, training or increased earning
power of the other party;
(K) The relative fault of the parties in cases where the court, in its discretion, deems
it appropriate to do so; and
(L) Such other factors, including the tax consequences to each party, as are necessary
to consider the equities between the parties.
Tenn. Code Ann. § 36-5-101(d)(1) (2001).
In dealing with the issues regarding alimony, we first will discuss the Trial Court’s
award of the marital home as alimony in solido. “Alimony in solido is an award of a definite sum
of alimony and ‘may be paid in installments provided the payments are ordered over a definite period
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of time and the sum of the alimony to be paid is ascertainable when awarded.’” Burlew, 40 S.W.3d
at 471 (quoting Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999)). Typically, alimony in solido
is awarded to adjust the distribution of the parties’ marital property. E.g., id. An award of “alimony
in solido is not inconsistent with a concurrent award of rehabilitative alimony.” Id. at 472.
In Burlew, our Supreme Court held: “Provided that the trial court considers the
purposes of alimony, ..., and the specific factors listed in the statute, Tenn. Code Ann. § 36-5-101(d),
it has wide discretion in determining the appropriate award.” Id. We find no evidence in the record
to suggest the Trial Court did not consider the purposes of alimony, nor do we find evidence the
Trial Court failed to consider the factors listed in Tenn. Code Ann. § 36-5-101(d). We hold the Trial
Court’s award of alimony in solido was not an abuse of discretion, and affirm on this issue.
Husband also argues on appeal the Trial Court erred in setting the amount of
rehabilitative alimony. Husband does not, however, argue the Trial Court erred in awarding
rehabilitative alimony as opposed to alimony in futuro or no spousal support.
As discussed above, trial courts have broad discretion in determining the amount and
duration of alimony awards, and this Court will not second-guess a trial court’s decision unless it
is unsupported by the evidence or is contrary to the public policies embodied in the applicable
statutes. It is the role of this Court to correct errors below, not to fine tune a trial court’s decision.
In Robertson v. Robertson, our Supreme Court discussed the purpose of rehabilitative
alimony as follows:
[R]ehabilitative alimony may assist the disadvantaged spouse in obtaining further
education or training. . . . ("Rehabilitative alimony serves to support an economically
dependent spouse 'through a limited period of re-education or retraining following
divorce, thereby creating incentive and opportunity for that spouse to become self-
supporting.'"). It may also provide temporary income to support the disadvantaged
spouse during the post-divorce economic adjustment.
Robertson v. Robertson, 76 S.W.3d 337, 340-41 (Tenn. 2002) (citations omitted).
The evidence indicates Wife was laid off from her job at TVA at about the time she
learned she was pregnant. Although Wife was offered another position at TVA, she did not accept
this job offer, but accepted Husband’s suggestion to stay at home. Since then, Wife’s only
employment outside the home involved working with Husband in the small antique business the
parties started in 1986. The evidence shows Wife could not return to work in her prior field without
first begin re-trained and re-certified, as her certifications had lapsed. In 2000, Wife began a course
of studies in computer science at Chattanooga State. She is unsure how long it will take her to
complete these studies. In the Final Decree of Divorce filed November 19, 2001, the Trial Court
found Husband’s earnings for 2001 to be $117,000 in regular wages and $16,380 in per diem.
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We hold that neither does the evidence in this case preponderate against the Trial
Court’s award, nor is the award contrary to public policy. The Trial Court’s award of rehabilitative
alimony in the amount of $1,365 per month for forty-two consecutive months was not an abuse of
discretion. We affirm on this issue.
Finally, we address Wife’s issue regarding whether this appeal is frivolous and she,
therefore, should be awarded attorney’s fees and costs for being required to defend. We decline to
hold this appeal frivolous and further decline to award Wife attorney’s fees and costs incurred as a
result of this appeal.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Larry Clyde
Seals, and his surety.
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D. MICHAEL SWINEY, JUDGE
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