Abernathy v. Abernathy ( 2000 )


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  •                    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    KENNETH HERBERT ABERNATHY v. KELLIE MICHELLE
    ABERNATHY
    Direct Appeal from the Circuit Court for Wilson County
    No. 1654    Clara Byrd, Judge
    No. M1999-00891-COA-R3-CV - Decided June 27, 2000
    In this divorce action, Kenneth Herbert Abernathy (Father) appeals the trial court’s final judgment
    awarding Kellie Michelle Abernathy (Mother) custody of the parties’ five-year-old son, imposing
    certain conditions on the Father’s visitation with the child, ordering the Father to pay $8819 to the
    Mother for her portion of the equity in the marital home, and ordering the Father to pay $5064 of the
    Mother’s attorney’s fees. We decline to address the Father’s issues regarding the conditions placed
    on his visitation with the child because, at oral argument, the Father’s counsel conceded that these
    issues were resolved by a subsequent order of the trial court removing the visitation conditions. In
    all other respects, we affirm the trial court’s judgment.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
    Remanded
    FARMER , J., delivered the opinion of the court, in which HIGHERS , J., and LILLARD , J., joined.
    Jon S. Jablonski, Nashville, Tennessee, for the appellant, Kenneth Herbert Abernathy.
    Jessica Dawn Dugger and Gregory S. Gill, Lebanon, Tennessee, for the appellee, Kellie Michelle
    Abernathy.
    OPINION
    The Father initiated this action in January 1998 when he filed a complaint for divorce against
    the Mother alleging the grounds of irreconcilable differences and inappropriate marital conduct. See
    Tenn. Code Ann. § 36-4-101(11), (14) (Supp. 1999). According to the Father’s complaint, this was
    the Father’s first marriage and the Mother’s third marriage. The Father’s complaint sought custody
    of the parties’ minor child, a son born in January 1994. The Father asked the trial court to award him
    certain property, including, inter alia, all interest in the marital home and the Father’s business,
    Aircraft Acrylic Repairs, Inc.
    The Mother filed an answer and a counter-complaint for divorce in which she sought custody
    of the parties’ child. In addition to the same grounds alleged in the Father’s complaint, the Mother
    asserted that the Father was guilty of habitual drunkenness and that he abused illegal drugs. See
    Tenn. Code Ann. § 36-4-101(10) (Supp. 1999). The Mother asked the trial court to make an
    equitable division of the parties’ real and personal property. The Mother also asked for an award of
    attorney’s fees.
    In March 1998, the trial court entered an agreed order granting the Mother temporary custody
    of the parties’ child, setting forth the Father’s visitation rights, and awarding the Father possession
    of the marital residence pending the final divorce hearing. Pursuant to a motion filed by the Mother,
    the trial court later entered an order requiring the parties and the child to submit to psychological
    evaluations.
    After conducting a trial in March and April 1999, the trial court entered a final judgment
    awarding the Mother a divorce on the ground of inappropriate marital conduct. As pertinent to this
    appeal, the trial court’s judgment awarded custody of the parties’ child to the Mother, imposed
    certain conditions on the Father’s visitation with the child, ordered the Father to pay $8819 to the
    Mother for her portion of the equity in the marital home, and ordered the Father to pay $5064 of the
    Mother’s attorney’s fees. With regard to the conditions placed on the Father’s visitation with the
    child, the trial court’s judgment required the parties and the child to attend behavioral modification
    counseling with Lori Drake-Bunch, specified that the amount of additional visitation that the Father
    was awarded would depend upon the Father’s cooperation with Drake-Bunch and her
    recommendations, reserved the issue of the Father’s summer visitation schedule pending the court’s
    receipt of Drake-Bunch’s report, and required that the Father’s visitation with the child be supervised
    by the Father’s mother.
    On appeal, the Father contends that the trial court erred in (1) awarding custody of the
    parties’ child to the Mother, (2) ordering the Father to participate in counseling with Lori Drake-
    Bunch as a prerequisite to the court’s setting a summer visitation schedule, (3) requiring the Father’s
    visitation with the child to be supervised by the Father’s mother, (4) valuing the parties’ residence,
    and (5) ordering the Father to pay a portion of the Mother’s attorney’s fees.
    I. Custody Award
    Our review of the trial court’s custody decision is governed by rule 13(d) of the Tennessee
    Rules of Appellate Procedure. See Ruyle v. Ruyle, 
    928 S.W.2d 439
    , 441 (Tenn. Ct. App. 1996);
    Koch v. Koch, 
    874 S.W.2d 571
    , 575 (Tenn. Ct. App. 1993). Rule 13(d) requires this court, in
    conducting a de novo review of the record, to presume that the trial court’s factual findings are
    correct, unless the evidence in the record preponderates otherwise. See Tenn. R. App. P. 13(d). In
    applying this standard of review, we are mindful that “[t]rial courts are vested with wide discretion
    in matters of child custody” and that “the appellate courts will not interfere except upon a showing
    of erroneous exercise of that discretion.” Koch, 874 S.W.2d at 575. Because “[c]ustody and
    visitation determinations often hinge on subtle factors, including the parents’ demeanor and
    -2-
    credibility during the divorce proceedings themselves,” appellate courts “are reluctant to second-
    guess a trial court’s decisions.” Gaskill v. Gaskill, 
    936 S.W.2d 626
    , 631 (Tenn. Ct. App. 1996). The
    courts’ paramount concern in a custody case is the welfare and best interest of the parties’ minor
    children. See Ruyle, 928 S.W.2d at 441; Koch, 874 S.W.2d at 575. This determination necessarily
    turns on the particular facts of each case. See Koch, 874 S.W.2d at 575.
    In making its custody decision, the trial court is required to engage in a “comparative fitness”
    analysis. Gaskill, 936 S.W.2d at 630. That is, the court is required to determine which parent is a
    comparatively more fit custodian than the other. See id. This factually-driven inquiry requires the
    court to carefully weigh, inter alia, the following considerations:
    (1)      The love, affection and emotional ties existing between the parents
    and child;
    (2)     The disposition of the parents to provide the child with food, clothing,
    medical care, education and other necessary care and the degree to which a parent has
    been the primary caregiver;
    (3)     The importance of continuity in the child’s life and the length of time
    the child has lived in a stable, satisfactory environment; . . .
    (4)     The stability of the family unit of the parents;
    (5)     The mental and physical health of the parents;
    (6)     The home, school and community record of the child;
    (7)    The reasonable preference of the child if twelve (12) years of age or
    older. . . .
    (8)     Evidence of physical or emotional abuse to the child, to the other
    parent or to any other person; . . . .
    (9)     The character and behavior of any other person who resides in or
    frequents the home of a parent and such person’s interactions with the child; and
    (10) Each parent’s past and potential for future performance of parenting
    responsibilities, including the willingness and ability of each of the parents to
    facilitate and encourage a close and continuing parent-child relationship between the
    child and the other parent, consistent with the best interest of the child.
    Tenn. Code Ann. § 36-6-106 (Supp. 1999).
    -3-
    On appeal, the Father contends that the trial court erred in awarding custody of the child to
    the Mother because the evidence at trial established that the Father is the more stable parent and that
    the Father “deals with” the child more appropriately. The Father points to evidence that he has
    owned his own business since 1994 and that he has provided well for the family, whereas the Mother
    has had several different jobs during the same time period and has remained financially dependent
    on others. The Father also cites the testimony of several witnesses, including the Mother, who
    indicated that the Father exerts greater control over the child’s behavior than does the Mother.
    Despite the favorable evidence supporting the Father’s custody request, we conclude that the
    trial court did not err in awarding custody of the parties’ child to the Mother. The evidence at trial
    demonstrated that both the Mother and the Father are loving parents who are very involved in their
    child’s life. In making its custody decision, however, the trial court indicated that it was particularly
    concerned with the child’s behavioral problems and each parent’s response to these problems. In
    awarding custody to the Mother, the court found that the Mother was open to the avenue of
    counseling and the court-appointed psychologist’s recommendations that the child be evaluated for
    attention deficit hyperactivity disorder and oppositional defiant disorder. In contrast, the court found
    that the Father’s attitude indicated that he was not open to the psychologist’s recommendations. The
    trial court’s comments also indicated that the court was concerned by evidence of the Father’s illegal
    drug use, and in its final judgment, the court included a provision enjoining both parties “from using
    or possessing any illegal drug in the presence of the minor child.”1 In conducting its comparative
    fitness analysis, the trial court indicated that these two factors weighed in favor of awarding custody
    to the Mother.
    We conclude that the evidence does not preponderate against the trial court’s custody
    decision. Although much of the evidence at trial was disputed, virtually all of the witnesses agreed
    that the child exhibited behavioral problems both at home and at school. The Mother testified that
    the child was “a handful.” At preschool, the child often sat in “time out” for failing or refusing to
    listen to his teachers’ instructions and for running around the school instead of staying with his class.
    Other witnesses described the child as “rambunctious,” “hyperactive,” and even “uncontrollable.”
    The psychologist appointed by the court to evaluate the parties and their son recommended that the
    child be evaluated for attention deficit hyperactivity disorder and oppositional defiant disorder. The
    Mother testified that she agreed with the psychologist’s recommendations for further evaluations.
    In contrast, the Father demonstrated less willingness to acknowledge the seriousness of the
    child’s behavioral problems or to seek appropriate guidance from professionals in dealing with these
    problems. When asked if the child needed counseling for his behavioral problems, the Father’s only
    response was that the child “needed his daddy.” On one occasion, the Mother convinced the Father
    to attend a counseling session to address the child’s behavioral problems. Instead of focusing on the
    subject of the counseling session, the Father insisted on explaining to the counselor why he and the
    Mother were divorcing. When the counselor tried to redirect the Father’s focus to his son’s
    1
    Although this provision specifically enjoined both parties, we note that the record contains
    no evidence that the Mother has used illegal drugs.
    -4-
    behavioral problems, the Father responded by stating that the reason the parties were there was
    because the Mother could not “keep her legs closed.”2 At trial, the Father admitted that he made this
    statement to the counselor, although he disputed the Mother’s testimony that the child was present
    when the statement was made. The Father also admitted telling the counselor that he did not need
    a woman telling him how to raise his son. The Father testified that he made this statement after the
    counselor told him that whipping a child with a belt was inappropriate.3
    As for the Father’s alleged drug and alcohol use, the Mother testified that the Father drank
    excessively and sometimes smoked marijuana. The Mother found marijuana and a pipe in the
    Father’s bathrobe pocket and rolling papers on the floorboard of the Father’s truck. The Father drank
    at least one six-pack of beer every day. On one occasion, the Father took prescription pain
    medication from the Mother’s purse. When the Mother confronted the Father about his use of illegal
    drugs, the Father defended his behavior, insisting that his drug use was not “such a big deal” and that
    it was “okay to party every once in awhile.” The parties separated after a December 1997 argument
    in which the Mother again confronted the Father about his drug use. The Father initially denied
    using drugs. As the confrontation progressed, however, the Father retrieved a plastic baggie and pipe
    from his truck and showed them to the Mother.
    The Father denied being a regular drug user, and he testified that all of his work-related drug
    screens had been negative. The Father admitted, however, that he had smoked marijuana as recently
    as December 1997. The Father admitted that the Mother once found a bag of marijuana in his
    bathrobe pocket; however, the Father claimed that he found the bag in his driveway where one of
    his employees dropped it. The Father also admitted that the Mother found two pipes containing
    marijuana among the Father’s personal belongings; however, the Father claimed that the pipes were
    merely souvenirs from his youth. Finally, the Father admitted that he took some of the Mother’s
    prescription pain medication from her purse.
    Moreover, the Father acknowledged that he sometimes drank in the child’s presence. For
    example, the Father and a friend drank beer when they took their children out on the friend’s boat.
    The Father also drank Wild Turkey when he took his son to the bowling alley. According to the
    Father, he did not drink to excess, and he drank only one and one-half to two cases of beer per
    month, not the six-pack-per-day habit described by the Mother. The Father testified that, if
    necessary, he would “give up anything” for his son, including drinking; however, he also testified
    that he would not give up drinking unless the trial court ordered him to do so.
    2
    The Father’s statement apparently referred to his suspicions that the Mother was engaging
    in an adulterous affair with a long-time friend. Despite hiring a private investigator and paying him
    $3000 to investigate the Father’s suspicions, the Father was unable to present any proof to support
    these allegations.
    3
    The Father previously had testified that he occasionally whipped the child with a belt. The
    Father explained that, “[e]arly on, years ago, when he [the child] was like two and a half years old,
    I broke a switch off a tree two or three times. . . . After that, I ain’t got no problem.”
    -5-
    We conclude that the foregoing evidence supported the trial court’s decision to award custody
    of the child to the Mother. As we previously indicated, in making its custody decision, the trial court
    was required to consider, among other factors, the disposition of the parents to provide the child with
    medical and other necessary care and the mental and physical health of the parents. See Tenn. Code
    Ann. § 36-6-106(2), (5) (Supp. 1999). The foregoing evidence directly related to both of these
    factors. As indicated by the Father’s own testimony, the Father was less willing than the Mother to
    seek professional guidance in dealing with the son’s behavioral problems. In fact, the Father
    appeared reluctant to admit that the son had any significant behavioral problems. Additionally,
    although the Father contended that his alcohol and drug use did not adversely impact the child, we
    believe that the trial court properly considered this evidence when the court evaluated the parties’
    comparative fitness to have custody of this child.
    II. Visitation Conditions
    In his second and third issues, the Father challenges certain aspects of the trial court’s final
    judgment regarding his visitation with the child. Specifically, the Father contends that the trial court
    erred in ordering him to participate in counseling with Lori Drake-Bunch as a prerequisite to the
    court’s setting a summer visitation schedule and in requiring the Father’s visitation with the child
    to be supervised by the Father’s mother.
    We decline to address these issues because, at oral argument, the Father’s counsel conceded
    that these issues were resolved by an agreed order entered in December 1999 whereby the trial court
    removed the foregoing conditions on the Father’s visitation with the child. See, e.g., Donegan v.
    Donegan, No. 01A01-9709-CH-00469, 
    1998 WL 639113
    , at *2 (Tenn. Ct. App. Sept. 14, 1998) (no
    perm. app. filed) (recognizing that custody issue raised on appeal was moot where trial court’s
    subsequent decision created different custody situation). Moreover, upon reviewing the record, we
    find no indication that the Father objected to these conditions below, although he had several
    opportunities to do so. See, e.g., Smith v. Smith, No. 03A01-9603-CV-00078, 
    1996 WL 591181
    ,
    at *3 (Tenn. Ct. App. Oct. 11, 1996) (no perm. app. filed) (holding that father waived issue
    regarding condition prohibiting father from exposing child to cigarette smoke by not objecting to
    condition below).
    III. Valuation of Marital Home
    As for the trial court’s valuation of the parties’ residence, the Father contends that the trial
    court erred in accepting John Massa’s “as-is” appraisal of $114,000 because Massa testified that he
    deducted only $17,500 from the home’s value to remedy its structural problems. The Father suggests
    that Massa, a residential real estate appraiser, was not qualified to testify to the cost of repairing the
    home. The Father insists that the trial court instead should have accepted the repair estimate of the
    Father’s expert, Barry Stafford, who testified that the house needed over $24,000 worth of structural
    repairs. The evidence showed that the house needed structural repairs because water had flooded
    the underside of the house and damaged its foundation.
    -6-
    We conclude that this issue lacks merit. At trial, John Massa testified that he was a certified
    appraiser of residential real estate. Massa appraised the parties’ residence at $114,000. Massa
    testified that he appraised the property in an “as is” condition, taking into account the structural
    problems that were brought to his attention by the Father. Massa deducted about $17,500 from the
    home’s value because he estimated that this amount would be required to remedy the home’s
    structural problems. Massa talked to several different contractors and builders in the area, and he
    relied on their opinions to arrive at a repair estimate.
    On cross-examination, the Father’s counsel asked Massa why he disregarded Barry Stafford’s
    repair estimate of over $24,000. Massa responded by explaining that, in his opinion, the home did
    not need all of the repairs included in Stafford’s estimate. Massa also testified that some of the
    repair costs included in Stafford’s estimate appeared excessive. Although the Father’s counsel
    attempted to impeach Massa concerning the bases for his repair estimate of $17,500, significantly,
    the Father’s counsel raised no objection to the admissibility of Massa’s testimony.
    Under evidentiary rule 703, “an expert witness may base an opinion upon matters that are not
    of his personal knowledge and that otherwise constitute inadmissible hearsay if those matters are of
    a type reasonably relied upon by experts in that field.” State v. Abbott, No. 02C01-9311-CC-00263,
    
    1995 WL 422810
    , at *4 (Tenn. Crim. App. July 19, 1995), perm. app. denied (Tenn. Dec. 28, 1995)
    (citing Tenn. R. Evid. 703).4 In the present case, the Father’s counsel did not challenge Massa’s
    qualifications to testify as an expert in the field of appraising residential real estate. Massa testified
    that, in appraising the parties’ residence, he necessarily relied upon the repair estimates of several
    contractors and builders in the area. Although Massa’s testimony did not explicitly address the
    requirements of rule 703, his testimony suggested that the contractors’ and builders’ repair estimates
    were matters of a type reasonably relied upon by experts in his field. Under these circumstances, we
    reject the Father’s argument that the trial court was required to reject Massa’s appraisal just because
    it was based, in part, upon information provided by area contractors and builders.
    Had the Father raised a contemporaneous objection to the admissibility of Massa’s testimony
    regarding the cost of repairing the residence, perhaps Massa would have testified more fully
    regarding the sources of his repair estimate and whether this information constituted matters of a type
    4
    Rule 703 contains the following provisions:
    Bases of opinion testimony by experts. – The facts or data in the particular
    case upon which an expert bases an opinion or inference may be those perceived by
    or made known to the expert at or before the hearing. If of a type reasonably relied
    upon by experts in the particular field in forming opinions or inferences upon the
    subject, the facts or data need not be admissible in evidence. The court shall disallow
    testimony in the form of an opinion or inference if the underlying facts or data
    indicate lack of trustworthiness.
    Tenn. R. Evid. 703.
    -7-
    reasonably relied upon by experts in his field. In the absence of such an objection, however, we
    decline to reverse the trial court’s judgment wherein it adopted Massa’s appraisal of the parties’
    residence. See Abbott, 
    1995 WL 422810
    , at *4 (concluding that trial court did not commit reversible
    error in allowing pharmacist to testify about therapeutic values of specific drugs where pharmacist’s
    testimony was based upon information he obtained from doctor and where appellant failed to enter
    contemporaneous objection to admissibility of testimony).5
    IV. Attorney’s Fee Award
    We also reject the Father’s contention that the trial court erred in ordering him to pay a
    portion of the Mother’s attorney’s fees. On appeal, the Father contends that the trial court’s award
    of attorney’s fees constituted an award of alimony in solido and that, pursuant to this court’s holding
    in Aleshire v. Aleshire, 
    642 S.W.2d 729
    , 733 (Tenn. Ct. App. 1981), the award was improper
    because the Father has no cash assets with which to pay the award and because alimony in solido
    may not be awarded from future earnings.
    We believe that the Father’s argument misconstrues this court’s holding in Aleshire. In
    Aleshire, we held that, as a general rule, alimony in solido should be paid out of the obligor spouse’s
    present estate and should not be awarded out of an expectation of the obligor’s future earnings. See
    Aleshire, 642 S.W.2d at 733. Contrary to the Father’s suggestion, however, Aleshire does not stand
    for the proposition that alimony in solido must be paid out of the obligor spouse’s “cash assets.”
    Rather, Aleshire refers to the obligor’s “present estate.” See id. For purposes of paying an award
    of alimony in solido, the obligor spouse’s present estate may include the obligor’s share of the
    marital property, the obligor’s separate property, and any equity therein. See Coke v. Coke, No.
    02A01-9210-CV-00279, 
    1993 WL 477016
    , at *4 (Tenn. Ct. App. Nov. 15, 1993) (no perm. app.
    filed).
    Moreover, even if the obligor spouse has no “present estate,” Aleshire does not prohibit the
    trial court from awarding alimony in solido. In Aleshire, we explained that extreme circumstances
    could arise where the trial court might find it necessary to require the obligor to pay alimony in
    solido from future earnings. See Aleshire, 642 S.W.2d at 733. As examples, we cited two possible
    scenarios, including the situation where “a spouse intentionally disposed of his or her tangible assets
    in order to deprive the other spouse of alimony in solido” and the situation where “a spouse entered
    into the marriage solely to have his or her spouse work and provide him or her with an education.”
    Id. In subsequent decisions, we have recognized additional situations, such as where the obligor
    spouse received the benefit of certain bank loans which later were discharged in bankruptcy, see
    Marler v. Marler, 
    1986 WL 1146
    , at *2 (Tenn. Ct. App. Jan. 28, 1986) (no perm. app. filed), where
    the obligor spouse disposed of marital assets without informing the other spouse, see Houghland v.
    5
    We note that, in his closing argument, the Father’s counsel argued that Massa’s estimate was
    “pure hearsay.” In light of counsel’s failure to raise a hearsay objection during Massa’s testimony,
    we believe that this argument went to the weight that should be given Massa’s testimony rather than
    to its admissibility.
    -8-
    Houghland, 
    844 S.W.2d 619
    , 622-23 (Tenn. Ct. App. 1992), and where the recipient spouse
    incurred debts to educate herself so that she could become self-supporting, see Day v. Day, 
    931 S.W.2d 936
    , 939 (Tenn. Ct. App. 1996).
    Even if the Father has no present estate from which to pay alimony in solido, we conclude
    that circumstances exist in this case which support the trial court’s award of attorney’s fees. At trial,
    the Father’s counsel conceded that many of the problems that the attorneys in this case “had to deal
    with were caused by [the Father’s] behavior.” The Father’s counsel also conceded that the Father
    “probably should be responsible for some, but not all, of [the Mother’s] attorney fees.” Under these
    circumstances, we conclude that the trial court did not err in ordering the Father to pay a portion of
    the Mother’s attorney’s fees.
    In any event, regardless of the propriety of an award of attorney’s fees as alimony in solido,
    we conclude that the trial court was authorized by statute to order the Father to pay a portion of the
    Mother’s attorney’s fees. See Beem v. Beem, No. 02A01-9511-CV-00252, 
    1996 WL 636491
    , at *8-
    *9 (Tenn. Ct. App. Nov. 5, 1996) (no perm. app. filed). Tennessee Code Annotated section
    36-5-103(c) provides that
    [t]he plaintiff spouse may recover from the defendant spouse, and the spouse
    or other person to whom the custody of the child, or children, is awarded may recover
    from the other spouse reasonable attorney fees incurred in enforcing any decree for
    alimony and/or child support, or in regard to any suit or action concerning the
    adjudication of the custody or the change of custody of any child, or children, of the
    parties, both upon the original divorce hearing and at any subsequent hearing, which
    fees may be fixed and allowed by the court, before whom such action or proceeding
    is pending, in the discretion of the court.
    Tenn. Code Ann. § 36-5-103(c) (Supp. 1999).
    As indicated by its language, section 36-5-103(c) authorizes an award of attorney’s fees in
    custody proceedings “both upon the original divorce hearing and at any subsequent hearing.” Id.
    In awarding attorney’s fees pursuant to section 36-5-103(c), the trial court may consider proof of
    inability to pay, but “ability to pay should not be the controlling consideration.” Sherrod v. Wix, 
    849 S.W.2d 780
    , 785 (Tenn. Ct. App. 1992). Such awards are designed “not primarily for the benefit
    of the custodial parent but rather to facilitate a child’s access to the courts.” Id. at 784.
    In the present case, the primary issue litigated by the parties was the custody of the minor
    child. Inasmuch as the trial court’s final judgment awarded custody of the child to the Mother, we
    conclude that the trial court possessed the authority to order the Father to pay a portion of the
    Mother’s attorney’s fees incurred below. We further conclude that the Mother’s request for an
    additional award of attorney’s fees on appeal has merit. Accordingly, we remand this cause to the
    trial court to determine and award a reasonable fee for the time and expenses of the Mother’s
    -9-
    attorney on appeal. See Holt v. Holt, 
    995 S.W.2d 68
    , 78 (Tenn. 1999); D v. K, 
    917 S.W.2d 682
    , 687
    (Tenn. Ct. App. 1995); Akins v. Akins, 
    805 S.W.2d 377
    , 379-80 (Tenn. Ct. App. 1990).
    The trial court’s judgment is affirmed, and this cause is remanded for the trial court to
    conduct a hearing to determine the Mother’s reasonable attorney’s fees incurred on appeal. Costs
    of this appeal are taxed to the appellant, Kenneth Herbert Abernathy, for which execution may issue
    if necessary.
    -10-