Si J. Williams v. Mary C. Williams

SI J. WILLIAMS, ) Davidson Circuit
) No. 95D-3793
Plaintiff/Counter-Defendant/ )
Appellee, )
VS.
)
)
FILED
)
MARY C. WILLIAMS, ) Appeal No. November 9, 1998
) 01A01-9709-CV-00522
Defendant/Counter-Plaintiff/ ) Cecil W. Crowson
Appellant. ) Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE MURIEL ROBINSON, JUDGE
V. Michael Fox, #13875
First American Center
20th Floor
315 Deaderick Street
Nashville, Tennessee 37238
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE
Carol L. Soloman, #6649
Casey Moreland, #11069
Washington Square, Suite 400
214 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT
AFFIRMED AND REMANDED.
HENRY F. TODD, JUDGE
CONCURS:
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
SI J. WILLIAMS, ) Davidson Circuit
) No. 95D-3793
Plaintiff/Counter-Defendant/ )
Appellee, )
)
VS. )
)
MARY C. WILLIAMS, ) Appeal No.
) 01A01-9709-CV-00522
Defendant/Counter-Plaintiff/ )
Appellant. )
OPINION
In this divorce case, Mary C. Williams, hereafter “wife” has appealed from the judgment
of the Trial Court awarding her a divorce from Si J. Williams, hereafter “husband,” custody,
child support, alimony, insurance, fees and division of property.
Husband is 50, wife is 52. They were married April 8, 1978, when the husband was 30
and the wife 31. Each was employed at a modest salary ($10,000 to $15,000 per year), and their
possessions were minimal. Their child, Claire, was born February 20, 1979. They acquired and
improved a home, furnishings, automobiles, savings and debts. The husband used and abused
alcohol during much of the marriage but was eventually able to control his addiction after a
period in a rehabilitation center. The wife became a spendthrift with her credit cards and was
eventually forced to seek institutional treatment because of her exposure to her husband’s
alcoholism before he stopped drinking. The parties’ daughter also suffered from her father’s
alcohol abuse and was treated by three institutions for psychological problems.
In November, 1995, the wife took early retirement from her employment. On November
24, 1995, the husband departed from the marital home.
On December 20, 1995, the husband filed his complaint alleging irreconcilable
differences promising to file a marital dissolution agreement. No such agreement is found in the
record.
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On January 17, 1996, the wife filed her answer and counter-complaint alleging
irreconcilable differences, inappropriate marital conduct and adultery. On December 12, 1996,
the counter-complaint of the wife was amended to add additional grounds.
On March 19, 1997, the Trial Court entered an order containing the following:
THEREFORE ORDERED, ADJUDGED AND
DECREED that both parties are guilty of inappropriate
marital conduct. However, Husband’s conduct is at a greater
degree of fault so Wife is hereby granted a divorce pursuant
to T.C.A. § 36-4-129. It is
FURTHER ORDERED, ADJUDGED AND
DECREED that Wife shall have sole custody of the minor
child and Husband shall pay child support in excess of the
guidelines for his failure to visit in the amount of $791.00
along with the Clerk’s fee of 5% for a total fee of $39.55, for
a total of $830.55 by wage assignment beginning January 1,
1997, to continue until the child is eighteen years of age or
graduates from high school, whichever comes last. It is
FURTHER ORDERED, ADJUDGED AND
DECREED that Husband shall pay to Wife alimony in futuro
until her death or remarriage the sum of $550.00 per month.
----
FURTHER ORDERED, ADJUDGED AND
DECREED that the alimony in this case is backdated to
November 1, 1996. Therefore, at the time of trial, Husband
owes Wife $1,100.00 alimony for November 1, 1996 to
December 1, 1996. Said sum is a judgment for which
execution shall issue, if necessary. It is
FURTHER ORDERED, ADJUDGED AND
DECREED that Husband/Complainant shall provide
hospitalization and medical insurance for the minor child until
she reaches the age of eighteen or graduates, whichever
occurs last. Further, Husband shall pay all uncovered
medical and dental, hospital and associated expenses except
for the counseling expense. The parties shall equally divide
the counseling expenses and Wife shall be responsible for any
co-payments and all prescriptions not covered by insurance.
Wife is in sole possession of the homeplace until the
minor child reaches eighteen years of age and has graduated
from high school at which time the home will be sold and the
equity divided. Wife shall be responsible for the mortgage
payment from January 1, 1997 forward. If the Wife becomes
two months in arrears on the mortgage, the house may be
ordered sold sooner than the above-stated time to prevent
foreclosure.
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Each party will keep his/her own automobile as their
sole property and be responsible for the payments thereon and
shall hold the other party harmless from same.
Each party shall be entitled to the ownership of his or
her retirement free and clear of any claims from the other
party.
Wife is awarded the sum of $9,000.00 from Husband
as alimony in solido for her share of the funds Husband
withdrew from the joint accounts. Said sum shall be paid to
Wife out of Husband’s share of the equity in the homeplace.
Further, the $9,000.00 will draw interest at the legal rate from
the day this order is thirty (30) days old forward.
Wife shall remain the beneficiary on the Universal
Life policy in the amount of $50,000.00 and Mr.
Williams/beneficiary of the $100,000.00 policy as long as
Husband is under the obligation to pay Mrs. Williams’
alimony.
Wife shall be responsible for her credit card debts in
her name and shall hold Husband harmless from same and
that Husband shall be responsible for his credit card debts in
his name and shall hold Wife harmless from same.
Wife is awarded all household furnishings except for
the antique gun, china from Husband’s family, and silver
from his family, the Snap-On and other related tools will be
divided with Wife choosing what she wants first.
All frequent flyer miles shall be equally divided
between the parties.
Husband shall pay to Wife’s attorney the sum of
$3,500.00 for attorney’s fees, which is a judgment for which
execution shall issue if necessary.
The matter of Husband’s agreement to pay one-half of
the medical bills shall be reserved pending a written
agreement or further hearing as to the amount of the bills.
On April 17, 1997, the wife filed a motion to alter or amend.
On May 15, 1997, the husband filed the following motion:
Comes now Husband, by and through his counsel of
record, and moves this Honorable Court for an Order
terminating child support. In support of his motion, Husband
would show that the minor child of the parties is eighteen
years old and will graduate high school on May 28, 1997.
-4-
On August 21, 1997, the Trial Court entered the following agreed order:
AGREED ORDER
It appears to the Court from the signatures of
counsel below that the parties are in agreement that Husband
should pay the Charter Lake Hospital bill and that Husband
should pay all the Parthenon Pavilion Medical Center bill.
Husband shall pay the Charter Lake Hospital bill and the
Partenon Pavilion Medical Center bill in full and shall hold
Wife harmless from same. In addition, Husband will pay to
Wife the sum of $5,000.00 for all outstanding medical bills,
home repairs and all alimony arreages through June 30, 1997,
said sum representing $1,650.00 in alimony arrearage and the
balance of $4,450.00 being for medical bills and renovation
on the homeplace. Further, Husband shall pay $3,611.50 for
Wife’s attorney fees on the date of the signing of this Order.
Husband shall furnish to Wife copies of frequent flyer
accounts from December, 1995 to present within thirty (30)
days or this agreement shall be null and void, and Husband
shall execute any necessary documents to transfer Wife’s
share of the miles to her. It is
THEREFORE ORDERED, ADJUDGED AND
DECREED that Husband is responsible for the Charter Lake
Hospital bill and shall hold Wife harmless from same
inasmuch as same is necessary for Wife’s support and well-
being. It is
FURTHER ORDERED that Husband is solely
responsible for the Parthenon Pavilion Medical Center and
shall hold Wife harmless from same inasmuch as same is
necessary for Wife’s support and well-being. It is
FURTHER ORDERED that Husband pay to Wife
the sum of $5,000.00 at the signing of this agreement which
figure covers all sums owned to Wife on the homeplace for
renovations and repairs, all medical bills and all alimony
arrearages as of June 30, 1997, said sum representing
$1,650.00 in alimony arrearage and the balance of $3,350.00
being for medical bills and renovation on the homeplace. It
is
FURTHER ORDERED that Husband shall pay
$3,611.50 for Wife’s attorney fee at the time of the signing of
this Order. It is
FURTHER ORDERED that Husband shall bring to
Wife all account statements for frequent flyer miles from
December 1995 to date for the following airlines: Southwest,
American, Northwest, Delta, TVA, US Air and United.
Husband shall execute any necessary documentation to
-5-
transfer Wife’s share of the frequent miles to Wife as ordered
by this Court. Husband shall provide this documentation at
the signing of this agreement, but not later than thirty (30)
days thereof. It is
FURTHER ORDERED that Husband shall make his
payments of alimony in futuro in the amount of $550.00 per
month.
----
FURTHER ORDERED that child support payments
by Husband shall terminate as of June 30, 1997. It is
FURTHER ORDERED that Wife shall give
Husband two weeks notice when his china and crystal are
available from storage and will inform Husband where and
when he may retrieve his property, and Husband shall not be
responsible for any storage fees on said china and crystal once
Wife makes it available. It is
FURTHER ORDERED that this Order shall be a
final judgment on all outstanding, unresolved issues from this
divorce.
On September 22, 1997, the wife filed the following “Amended Notice of Appeal:”
Comes now the Wife/Appellant in this cause, Mary C.
Williams, by and through her attorneys, Carol L. Soloman and
Casey E. Moreland, and hereby gives notice of her intent to
appeal the Court’s ruling on the division of marital property,
award of alimony and other related issues in this cause, all
having been made final by the entry of an Order on the 21st
day of August, 1997.
On Appeal, the wife presents the following issues:
I. Whether the trial court should have extended
the child support for the parties’ daughter past the age of
majority because of the disability caused by the daughter’s
emotional problems.
II. Whether the trial court erred in not awarding
wife a portion of husband’s retirement benefits.
III. Whether the trial court should have awarded
wife $1,700 per month as alimony in futuro rather than
$550.00 per month.
The husband presents the issues in the following form:
-6-
I. Whether the trial court properly terminated
child support when the parties’ minor child reached the age of
majority, as the appellant failed to prove that the child
suffered a disability that prevented her from supporting
herself.
II. Whether the trial court properly awarded each
party his/her own retirement benefits, which appellant agrees
were of approximatley equal value.
III. Whether the trial court erred in awarding
alimony in futuro rather than rehabilitative alimony.
Ordinarily, an Agreed Order is an order all provisions of which are agreed upon by the
parties. Such an order would not ordinarily be questioned on appeal. It does not appear that all
provisions of the August 21, 1997, order quoted above, were agreed upon by the parties. It does
appear that the first paragraph of the order recites provisions upon which the parties have agreed.
The word, therefore, at the beginning of the second paragraph indicates that the order included
in the paragraph was entered pursuant to the agreement of the parties. It also appears that the
second, third and fourth “ordering” paragraph were agreed upon by the parties.
From the issues presented to this Court, it appears that the remainder of the order of the
Trial Court was not agreed upon by the parties, despite the words “Agreed Order” appearing as
the title of the order.
The careful use of the word, agreed, in preparation of orders would avoid troublesome
confusion.
First Issue: Continuation of Child Support
The wife insists that the child is unable to work and support herself because she is
“severely emotionally disturbed.” Mr. Elliot Stockard testified that he was “a master level in
psychology,” a “licensed addiction counselor,” that he has been seeing Claire over four years;
that she had been hospitalized, was overweight, “pretty obese,” nervous, unable to sit still for
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long periods of time, and had “ticks” (short movements of her face); that she did not have
“substance abuse;” that “Claire’s got a lot of sugar;” that she’s “acting out her mother’s anger;”
that “I think a good avenue for Claire would be to continue to be in therapy.” Asked if Claire
could hold down a job, the witness answered, “I don’t think so.” Asked, “Do you think she’s
above average?” He answered, “yes.”
Even where only one expert testifies, the fact finder may decide the issues upon its own
judgment, considering the expert testimony for what it is worth. Airline Constr. Co. v. Barr,
Tenn. 1976, 807 S.W.2d 247. England v. Burns, Stone Co., Inc., Tenn. App. 1993, 874 S.W.2d
32. Edwards v. State, Tenn. 1976, 540 S.W.2d 641.
In evaluating the testimony of a so-called expert, the Trial Judge has broad discretion in
selecting the parts of the testimony which are supported by underlying facts and which are the
products of inadmissible conjuncture, TRE Rule 703, Omni Aviation v. Perry, Tenn. App. 1990,
807 S.W.2d 276.
The evidence does not preponderate against the decision of the Trial Court to discontinue
child support after the age of majority and completion of high school. T.R.A.P. Rule 13(d).
Second Issue: Division of Retirement.
The wife “lucked out” by receiving a $22,000 bonus for taking early retirement. She used
the $22,000 to pay credit card bills and to finance Band trips and a trip to France for Claire.
There is evidence that the retirement rights of the husband are worth about $75,000, and that the
wife receives $584.00 per month retirement. The value of the wife’s retirement is not shown.
There is no evidence of any inequality between the value of the pensions earned by the
respective parties during the marriage.
-8-
This Court finds no basis for revising the allocation of pensions by the Trial Court.
Third Issue: Amount of Alimony.
The wife’s claimed expenses include the following:
Mortgage payment $520.51
Utilities 271.00
Car operation 250.00
Auto payment 157.56
Loans and payments 455.83
Household & personal 572.00
$2,226.90
The wife’s income consists of her pension of $584 per month and the $550 alimony fixed
by the Trial Court, a total of $1,134 per month.
The wife insists that she is unable to work because of carpel tunnel surgery which
interfere with typing. At the time of the trial she was enrolled in computer training and had
purchased a computer. She has office skills other than typing. The divorce decree directs that
the home be sold when the child reaches majority. The sale of the house will terminate the
mortgage payment, but rent will continue to be an expense unless the wife can acquire a more
modest home.
It is evident that the wife is capable of earning money and that her asserted expenses
include maintaining her adult child as to which the husband no longer has responsibility.
In view of the convoluted situation of the wife, this Court is unable to find that the
evidence preponderates against the decision of the Trial Judge as to the amount of alimony.
The husband insists that the alimony should be temporary and rehabilitative. The present
record does not support a revision of the judgment of the Trial Court in this regard. However,
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upon proper application and review of the efforts of the wife to re-enter the work force, the Trial
Court may see fit to modify the amount and/or duration of alimony to such extent as may be just.
The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the
appellant and her surety. The cause is remanded to the Trial Court for further proceedings.
AFFIRMED AND REMANDED.
___________________________
HENRY F. TODD, JUDGE
CONCUR:
___________________________
BEN H. CANTRELL, P.J., M.S.
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
SI J. WILLIAMS, ) Davidson Circuit
) No. 95D-3793
Plaintiff/Counter-Defendant/ )
Appellee, )
)
VS. )
)
MARY C. WILLIAMS, ) Appeal No.
) 01A01-9709-CV-00522
Defendant/Counter-Plaintiff/ )
Appellant. )
JUDGMENT
In accordance with the opinion of the Court filed herein, the judgment of the Trial
Court is affirmed. Costs of this appeal are adjudged against the appellant and her surety.
The cause is remanded to the Trial Court for further proceedings.
_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
__________________________________
WILLIAM C. KOCH, JR., JUDGE
__________________________________
HENRY F. TODD, JUDGE