The opinion
IN THE COURT OF APPEALS OF TENNESSEE
JOHN EDMUND STREUN, )
FILED
C/A NO. 03A01-9707-CV-00299
)
Plaintiff-Appellant,) February 5, 1998
)
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CIRCUIT COURT
v. )
)
)
)
)
DELORES JEAN STREUN, )
) HONORABLE ROBERT M. SUMMITT,
Defendant-Appellee. ) JUDGE
For Appellant For Appellee
CHARLES D. PATY GLENNA M. RAMER
Paty, Rymer & Ulin, P.C. Chattanooga, Tennessee
Chattanooga, Tennessee
O P I N IO N
REVERSED IN PART
AFFIRMED IN PART
REMANDED Susano, J.
1
This is a divorce case. Following a bench trial, the
court awarded Delores Jean Streun (“Wife”) an absolute divorce on
the ground of inappropriate marital conduct, divided the parties’
property, and ordered John Edmund Streun (“Husband”) to pay
periodic alimony in futuro of $350 per month. Husband appealed,
arguing, in effect, that the evidence preponderates against the
trial court’s determination that Wife was entitled to periodic
alimony in futuro. Wife contends that the alimony award is
appropriate. She submits an additional issue -- that, in her
words, “the trial court erred in not enforcing the parties’
settlement agreement of November 7, 1995.”
In this non-jury case, the record of the trial court’s
proceedings comes to us with a presumption of correctness as to
the trial court’s factual findings. We must honor this
presumption “unless the preponderance of the evidence is
otherwise.” Rule 13(d), T.R.A.P. The trial court’s conclusions
of law are not accorded the same deference. Campbell v. Florida
Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett,
860 S.W.2d 857, 859 (Tenn. 1993).
In a divorce case, a “court may make an order and
decree for the suitable support and maintenance of either spouse
by the other spouse, or out of either spouse’s property, ...
according to the nature of the case and the circumstances of the
parties.” T.C.A. § 36-5-101(a)(1). The threshold question is
whether the spouse requesting alimony is “economically
disadvantaged, relative to the other spouse.” T.C.A. § 36-5-
101(d)(1). Pursuant to the provisions of T.C.A. § 36-5-
2
101(d)(1)(A)-(L), there are twelve factors that a court should
consider “[i]n 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 “real need” of the requesting spouse “is the
single most important factor.” Cranford v. Cranford, 772 S.W.2d
48, 50 (Tenn.App. 1989). See also Aaron v. Aaron, 909 S.W.2d
408, 410 (Tenn. 1995). “In addition to the need of the
disadvantaged spouse, the courts most often consider the ability
of the obligor spouse to provide support.” Cranford, 772 S.W.2d
at 50. A trial court has broad discretion in making an alimony
determination. Aaron, 909 S.W.2d at 410. In any event, alimony
in excess of need is punitive, and, hence, should not be awarded.
Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn.App. 1984). Alimony
is not designed to punish an errant spouse. Id.
The parties to this litigation were the only witnesses
who testified as to facts relevant to the subject of alimony.
With the exception of two exhibits that are not directly related
to the issue of alimony, the only documents introduced at trial
were the financial affidavits of the parties.
Wife presented an income and expense affidavit,
reflecting the following:
Net monthly income from employment $1,338.39
Less: Expenses
Regular monthly expenses $1,470.71
Other expenses of Wife 318.00
Expenses of two adult
children 485.00 2,273.71
Alleged shortfall <$ 935.32>
=========
3
Husband does not challenge the correctness of many of Wife’s
expenses; but he does challenge the inclusion in her affidavit of
the expenses of his two adult children.1 He also questions the
accuracy of Wife’s “regular monthly expenses” of $1,470.71, which
include, in her words, an “auto payment, credit cards, automatic
payroll deduction for loan with credit union, etc.” of $788.
Unfortunately, the record does not reflect a breakdown of these
monthly credit card and note payments. A breakdown would have
been helpful since the trial court’s judgment provides that “the
outstanding indebtedness of the parties” is to be paid from the
sale of the parties’ two unimproved lots and, further, that
certain other debts are to be paid directly by Husband. Be that
as it may be, it is clear from the record that Wife’s monthly
credit card and note payments, post-divorce, will not amount to
$788 as set forth in her affidavit.
It is also clear that Wife earns more than the
$20,363.202 annual gross income claimed on her affidavit. She
admitted that she worked some overtime for her employer, Olan
Mills -- overtime that is not reflected on her affidavit. She
testified that her W-2 wages from Olan Mills in 1995 were
“probably” $23,000. Furthermore, Wife testified that she earned
money from two other sources, neither of which is reflected in
her income and expense statement:
1
Wife’s complaint did not seek to predicate a child support request on
the theory that either of these children was disabled to the extent that child
support beyond the age of majority would be justified. Cf. Stevens v.
Raymond, 773 S.W.2d 935, 938 (Tenn.App. 1989). One of the children was
employed and Wife’s counsel acknowledged at trial that the other child, while
unemployed, was not disabled.
2
$391.60 per week x 52 weeks.
4
Q In addition to trying to work overtime, do
you have other things that you do try to do
to generate money?
A Yes, ma’am, I do. I do hair on the side to
try to make extra money. I also do wallpaper
on the side to make some extra money.
Particularly significant to the question of alimony is the
following exchange during Wife’s cross-examination:
Q If you didn’t have your son to support or
your daughter, you could support yourself,
couldn’t you?
A Just on my own, yes, but I have to have a
home for my children as long as they need me.
We are required, in our de novo review, to determine
the preponderance of the evidence in this case. Considering only
Wife’s testimony, we find that the evidence preponderates against
her claimed need for alimony. It is clear that she cannot claim
her children’s expenses to support her alimony request. Husband
is not obligated for these expenses. See T.C.A. § 34-11-102(b).
It is likewise clear, again only considering Wife’s testimony,
that the income on her affidavit is understated and that her
monthly credit card and note payments are overstated. Finally,
Wife acknowledged that she had sufficient income to support
herself. The alimony award cannot stand.
By way of a separate issue, Wife contends that the
trial court erred in failing to enforce the “parties’ settlement
agreement of November 7, 1995.” We find that Wife has waived
this alleged error.
5
It is clear from the record that the parties met on
November 7, 1995, and reached an agreement regarding
substantially3 all of the pending issues. It is likewise clear
that, following their settlement conference, the parties
announced the details of their settlement in open court. Without
opposition from Husband, Wife asked that she be granted a divorce
on the ground of inappropriate marital conduct. The court
refused to do so, believing, incorrectly, that it was precluded
from doing so because Wife did not have a corroborating witness.4
Instead, the court orally awarded a divorce on the ground of
irreconcilable differences, even though the parties had not
reduced their agreement to writing.5 On a day subsequent to the
announcement, and before a judgment was entered, Husband
repudiated the agreement and this case proceeded to a contested
hearing before the trial court.
A transcript of the November 7, 1995, settlement
announcement was introduced at trial; but the court refused to
precisely follow its terms. We do not find this to be reversible
error in this case.
We acknowledge that the facts of this case are somewhat
similar to the case of REM Enterprises, Ltd. v. Frye, 937 S.W.2d
920 (Tenn.App. 1996) where we held that a detailed settlement
3
Husband points out that the November 7, 1995, agreement did not address
Wife’s retirement account at Olan Mills. That fund was equally divided by the
court in its judgment.
4
Cf. T.C.A. § 36-4-129.
5
It is clear that a divorce on the ground of irreconcilable differences
should only be granted after the parties have executed a written marital
dissolution agreement. See T.C.A. § 36-4-103(b).
6
announced in open court and acknowledged to be such by the
parties at that court session was binding even though disavowed
by one side before the judgment was entered. Id. at 921-22. In
so holding, we distinguished Harbour v. Brown for Ulrich, 732
S.W.2d 598 (Tenn. 1987) where the parties announced to the court
that they had reached a settlement but failed to state the terms
of the settlement. In Harbour, the court allowed a party to
repudiate the settlement, noting that “a valid consent judgment
cannot be entered by a court when one party withdraws his consent
and this fact is communicated to the court prior to entry of the
judgment.” Id. at 599. In the instant case, however, we do not
find it necessary to reach the issue raised by Wife. This is
because we find that wife has waived this alleged error.
Following the hearing below, the court entered its
judgment. After the judgment was entered, counsel for the
parties approved an “Agreed Order” which was subsequently signed
and entered by the trial court. In addition to modifying the
judgment, the Agreed Order prescribes terms regarding the court’s
division of assets and debts that are at variance with the terms
of the parties’ agreement of November 7, 1995. Significantly,
the Agreed Order does not reserve to Wife the right to raise the
issue of the enforceability of the earlier agreement. In effect,
by approving the Agreed Order, Wife has assented to certain terms
of the division of property and debts now before us. Even
assuming, solely for the purpose of discussion, that the earlier
agreement was enforceable, we could not enforce it now since it
conflicts with the terms of Wife’s most recent agreement. By
agreeing to change the court’s judgment, Wife has waived the
7
issue now being raised by her. See Rule 36(a), T.R.A.P.
(“Nothing in this rule shall be construed as requiring relief be
granted to a party...who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of
an error.”)
So much of the judgment of the trial court as awards
Wife periodic alimony in futuro of $350 per month is hereby
reversed. The remainder of the court’s judgment is affirmed.
Costs on appeal are taxed to the appellee. This case is remanded
for enforcement of the trial court’s judgment, as modified by
this opinion, and for collection of costs assessed below, all
pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
William H. Inman, Sr.J.
8