Carolyn Louise Taylor Perkins v. John Bauman Perkins, Jr., - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
CAROLYN LOUISE TAYLOR )
PERKINS, )
)
Plaintiff/Counter-Defendant/ ) Davidson Circuit No. 93D-1577
Appellant, )
)
VS. ) Appeal No. 01A01-9504-CV-00158
JOHN BAUMAN PERKINS, JR.,
)
)
FILED
) November 15,
Defendant/Counter-Plaintiff/ ) 1995
Appellee. )
Cecil Crowson, Jr.
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT L. JACKSON, SPECIAL JUDGE
Mary Ann Reese
Baydoun, Harris & Reese, P.A.
Nashville, Tennessee
Attorney for Appellant
Carol L. Soloman
Nashville, Tennessee
Attorney for Appellee
AFFIRMED AS MODIFIED
ALAN E. HIGHERS, JUDGE
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
HEWITT P. TOMLIN, JR., SP. J.
This is a divorce case in which Wife appeals the judgment of the trial court
regarding, inter alia, the division of marital property and the trial court's allowance of expert
testimony.
I.
The pertinent facts are as follows. Carolyn Louise Taylor Perkins (hereinafter
"Wife") and John Bauman Perkins, Jr. (hereinafter "Husband"), were married on June 24,
1966. One child, now in her majority, was born of the parties' marriage. During the
marriage, both Husband and Wife worked outside of the home. At the time of the divorce,
the parties owned two businesses: Special Security Services, Inc., a private guard duty and
funeral escort service, and Special Removal Services, which transported dead bodies.
Husband worked at the parties' businesses while Wife worked elsewhere. However, Wife
handled the businesses' payroll and billing requirements from the businesses' inception in
1988 until 1991.
Husband had several extra-marital affairs throughout the parties' marriage. In
March of 1993, Wife learned that Husband was having an affair with Bobbie Denney. The
parties separated at that time. At the time of trial, Husband was living with Ms. Denney
and her three children. Husband made minor contributions to the Denney household for
food, cleaning, and other household items. Ms. Denney worked for Special Security
Services, without pay, but was given a company car to drive.
Wife was granted a divorce on the first day of trial after Husband's admission of
adultery. However, the trial court did not divide the marital estate or consider issues of
alimony until almost two months later. At that time, the trial court divided the marital
property as follows. The equity in the marital residence, in the amount of $54,400, was
divided between the parties. The court apportioned Husband's share in the equity as
follows: one half of Husband's portion, or $13,600, was awarded as alimony in solido, one
half was credited against Wife's share in the parties' businesses. The parties retained the
personal property that was in their possession. Wife was awarded 32 shares of General
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Electric stock. Both parties retained their respective checking, savings and retirement
accounts. Wife was awarded ownership of the parties' life insurance policy; however,
Husband received a credit for his portion of the policy's cash surrender value, which the
court applied both to discretionary costs assessed against Husband and to the marital
estate judgment awarded to Wife. The trial court determined that the combined fair market
value of Special Security Services, Inc. and Special Removal Services was $130,000, or
$65,000 each, which the court divided as follows: Husband was awarded both businesses.
Husband received a credit of $13,600, representing part of his share of the equity in the
marital residence and reducing Wife's share in the value of the businesses to the
judgment amount of $51,400. The court ordered that Husband pay the judgment in
increments of $500, bearing simple annual interest of 6%. The trial court found that Wife
was not entitled to periodic alimony. Wife was awarded $7,500 in attorney fees, and costs
were taxed to Husband. Wife appeals the trial court's decision.
II.
The first issue raised by Wife is whether the trial court erred in allowing the
testimony of Husband's business valuation expert, Gerald LeCroy, when Mr. LeCroy's
name was not on Husband's witness list as required by Rule 22 of the Davidson County
Local Rules of Court. Rule 22 states in pertinent part:
Section 22.01 Required Procedure
At least 72 hours (excluding weekends and holidays) before
the trial of the civil case, opposing counsel shall either meet
face-to-face or shall hold a telephone conference for the
following purposes: (a) to exchange names of witnesses,
including anticipated impeachment or rebuttal witnesses . . ..
Although the trial judge initially stated that counsel could only call witnesses on the Rule
22 list, Mr. LeCroy was permitted to testify over the objection of Wife's counsel.
In Airline Construction, Inc. v. Barr, 807 S.W.2d 247 (Tenn. App. 1990), the court,
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referring to its authority to permit testimony when a witnesses' name is not revealed during
discovery, stated:
[The trial judge may] permit the witness to testify, or it may
exclude the testimony, or it may grant a continuance so that
the other side may take the deposition of the witness or
otherwise prepare to meet the testimony. . .. However, when
such omission is willful, knowing or deliberate, an exclusion of
the witnesses' testimony is suggested (emphasis supplied).
In the present case, there is no evidence that Husband's counsel deliberately withheld Mr.
LeCroy's name from Wife's counsel. Furthermore, the record reveals that the trial judge
considered counsel's explanation for not disclosing Mr. LeCroy's name sooner and
determined that his testimony was too important to be excluded. We find no error in the
trial court's allowance of Mr. LeCroy's testimony.
The second issue Wife presents is whether the trial court assigned a proper value
to the business interests of the parties. Two experts testified in this case as to the value
of both Special Security Services, Inc. and Special Removal Services. Although both
experts relied on the valuation guidelines set forth in Blasingame v. American Materials,
Inc., 654 S.W.2d 659 (Tenn. 1983), Wife's expert, Mr. Von Harshman, valued the
businesses at between $235,000 and $255,000, while Mr. LeCroy, Husband's expert,
valued the businesses at $120,000. The parties do not dispute that both businesses were
marital assets.
Since this case was tried by the court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the findings of fact by the trial
court. Unless the evidence preponderates against the findings, we must affirm, absent
error of law. T.R.A.P. 13(d).
It is well established that the valuation of an asset is a question of fact, and on
appeal there is a presumption that the trial court's valuation is correct. Wallace v. Wallace,
733 S.W.2d 102, 107 (Tenn. App. 1987); Edwards v. Edwards, 501 S.W.2d 283, 288
(Tenn. App. 1973). The trial court may properly make a valuation that is within the range
of proof submitted. Wallace, 733 S.W.2d at 107. In the present case, the trial judge
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determined that the value of the businesses was $130,000. After reviewing the testimony
of both experts, we cannot say that the evidence preponderates against the findings of the
trial judge. See Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. App. 1983). Therefore, we
affirm the trial court's decision regarding the value of the parties' businesses.
Wife's third and fourth issues on appeal concern specific provisions within the trial
court's division of marital property. Wife argues the following: she should have received
a lump sum payment, rather than installments, representing her share of the parties'
businesses; the interest on the judgment should be 10%, rather than 6%; and that a
judgment lien should have been entered to secure Wife's judgment.
It is a fundamental principle of law that trial courts have broad discretion in dividing
the marital estate, and their decisions are afforded great weight on appeal. Fisher v.
Fisher, 648 S.W.2d 244, 245 (1983). This Court will presume that the findings of the trial
court are correct unless the evidence preponderates otherwise. Barnhill v. Barnhill, 826
S.W.2d 443, 459 (Tenn. App. 1991). In making a division of marital property, the trial
court is required to consider the factors set forth in T.C.A.§ 36-4-121(c) (1991).
The trial court did not err in allowing Husband to pay the $51,400 judgment
awarded Wife in monthly increments of $500. The record reveals that the parties'
businesses were cash poor and had few assets. Requiring Husband to pay Wife a lump
sum of $51,400 would likely have depleted the businesses' assets. However, after
reviewing T.C.A. § 47-14-121 (1988), we are convinced that the trial court erred in fixing
an annual interest rate of 6% on the judgment. The interest rate to be applied to
judgments, including decrees, is 10% per year. See also Inman v. Inman, 840 S.W.2d
927, 931 (Tenn. App. 1992). In Bedwell v. Bedwell, 774 S.W.2d 953, 956 (Tenn. App.
1989), the court stated: "[t]he language [in T.C.A. § 47-14-121] is mandatory and it is
generally held the rate of interest prescribed by statute is deemed controlling and is not
subject to reduction by reason of equitable considerations." Based on the foregoing, we
hereby modify the trial court's final decree consistent with T.C.A. § 47-14-121.
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Wife contends that this Court should place a lien on Husband's property to secure
the $51,400 judgment awarded to Wife. It is unclear why the trial court did not secure
Wife's judgment with a lien, and Wife's counsel makes no suggestion as to what property
this Court should encumber for security. Because the trial court awarded Wife
substantially all of the parties' real property, and because the remedies set forth in T.C.A.
§ 25-5-101 (1994) remain available to Wife, we decline to modify the trial court's decree
by ordering that a judgment lien be placed on Husband's property.
Wife's fifth issue on appeal is whether Wife is entitled to periodic alimony. In Hall
v. Hall, 772 S.W.2d 432, 440-41 (Tenn. App. 1989), the court stated that "[t]he amount of
alimony to be allowed in any case is a matter for the discretion of the trial court in view of
the particular circumstances, and appellate courts are disinclined to review that discretion
except where its use is clearly erroneous" (citing Ingram v. Ingram, 721 S.W.2d 262(Tenn. App. 1986)). In Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993), the court
stated "[t]he trial court's decision [regarding alimony awards] is factually driven and requires
a balancing of the factors listed in T.C.A. § 36-5-101(d) . . ..Of these factors, need and the
ability to pay are the most critical" (citations omitted). In the instant case, the trial court
denied Wife periodic alimony based on the fact that Wife was forty-five years old, gainfully
employed, and earning approximately the same income as Husband. The lower court also
found that its alimony in solido award to Wife offset Wife's need for periodic alimony. After
reviewing the factors set forth in T.C.A. § 36-5-101, we conclude that the trial court did not
abuse its discretion in declining to award Wife periodic alimony.
Wife's sixth issue on appeal is whether Wife should be awarded her attorney's fees
and costs, both below and on appeal. Although this case does not involve a large marital
estate, Wife has incurred in excess of $15,000 in attorney's fees, of which the trial court
ordered Husband to pay $7,500. Additionally, the discretionary costs and expenses in this
matter are $5,268.44, which the lower court ordered Husband to pay.
This Court stated in Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn.
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App.1992) that
[t]he decision to award attorney's fees to a party in a divorce
proceeding and the amount thereof, are largely within the trial
court's discretion and will not be disturbed upon appeal unless
the evidence preponderates against such a decision. Batson
v. Batson, 769 S.W.2d 849, 862 (Tenn. App. 1988); Lyon v.
Lyon, 765 S.W.2d 759, 762-63 (Tenn. App. 1988) . . .. In
Baggett v. Baggett, 512 S.W.2d 292, 294 (Tenn. App. 1973),
this Court held that an award of attorney's fees was
inappropriate where both parties are partially successfully [sic]
on appeal.
We do not find that the evidence preponderates against the trial judge's award of either
attorney's fees or costs. Accordingly, we decline to grant Wife an additional award.
The seventh and final issue Wife presents for this Court's review is whether the
nunc pro tunc order should be set aside. This cause initially came to be heard on May 16,
1994. On that date, the trial court granted the parties a divorce based on Husband's
admission of adultery, reserving consideration of alimony and division of marital property
until a later date. The trial court asked Wife's counsel to draw up an order granting the
parties a divorce as of May 16, 1994. For reasons that are unclear to us, Wife's counsel
failed to enter an order. When the court reconvened on July 13, 1994, it entered an order
nunc pro tunc granting Wife a divorce effective May 16, 1994.
The purpose of an order nunc pro tunc is to make effective now what should have
been done earlier, giving full force and effect to the thing, as if done at the earlier date.
See Blacks's Law Dictionary 1069 (6th ed. 1990). In the present case, the trial court
granted the parties an absolute divorce on May 16, 1994. Wife's counsel offers no reason
for her failure to promptly enter the order of divorce as the trial court requested, and we
find no merit in counsel's argument that the nunc pro tunc order violates the interests of
justice. Accordingly, we decline to set the order aside.
Based on the foregoing, the decision of the trial court is affirmed as modified. Costs
on appeal are taxed to both parties equally.
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HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
TOMLIN, SP. J.
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