The opinion
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
FILED
November 25, 1997
EUGENE CALVIN CHEATHAM, )
Cecil W. Crowson
)
Appellate Court Clerk
Plaintiff/Appellant, )
) Maury Chancery
) No. 92-729
VS. )
) Appeal No.
) 01A01-9508-CH-00380
KARYN ELIZABETH CHEATHAM, )
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT FOR MAURY COUNTY
AT COLUMBIA, TENNESSEE
THE HONORABLE JIM T. HAMILTON, CHANCELLOR
For the Plaintiff/Appellant: For the Defendant/Appellee:
W. Gary Blackburn Mary Frances Lyle
David F. Gore Bruce, Weathers, Corley,
Blackburn, Slobey, Freeman & Happell Dughman & Lyle
Nashville, Tennessee Nashville, Tennessee
AFFIRMED IN PART; MODIFIED IN PART
AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal stems from the dissolution of a twenty-seven year marriage. Two
years after entering a relationship with another woman, the husband filed suit for
divorce in the Chancery Court for Maury County. The wife initially resisted the
divorce but later counterclaimed for divorce. The trial court heard the case without
a jury and awarded the wife a divorce based on the husband’s inappropriate marital
conduct. The trial court also divided the marital estate equally, awarded the wife
$3,000 per month in long-term spousal support, and ordered the husband to pay an
additional $41,000 for the wife’s legal expenses. The husband takes issue on this
appeal with the valuation of his business, the division of the marital estate, the long-
term spousal support award, and the award for legal expenses. While we have
determined that the spousal support award is proper, we have decided that the
division of the marital estate must be modified to correct a classification error and
that the award for legal expenses must also be revised. Accordingly, we modify and
affirm the judgment.
I.
Karyn Elizabeth Cheatham and Eugene Calvin Cheatham met while they were
attending Ohio State University. They were married in July 1965, when Mr.
Cheatham was a rising sophomore, and Ms. Cheatham was about to begin her senior
year. Ms. Cheatham did not complete college following the marriage. Both she and
Mr. Cheatham worked until Mr. Cheatham graduated from Ohio State in 1969.
Thereafter, the parties moved to Michigan where Mr. Cheatham obtained a master’s
degree in public policy from the University of Michigan.
Following the birth of their first child in 1971, the parties moved to Nashville
because Mr. Cheatham had accepted an appointment at Fisk University as an assistant
professor and Director of the Center for Urban Public Affairs. The parties adopted
their second child in 1973. In addition to her role as a homemaker, Ms. Cheatham
briefly operated a small, part-time crafts business. The parties moved to North
Carolina in 1976 so Mr. Cheatham could take a job with the State of North Carolina.
He left that position a short time later to work at North Carolina State University.
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The parties experienced their first marital difficulties in North Carolina and sought
marital counseling while they were there.
The parties returned to Nashville in 1978. Mr. Cheatham worked as a
consultant, and later joined with Tony and Bill Pogue, two venture capitalists, to
found Advanced Integrated Technology, Inc., a business providing automation and
computer consulting services to other businesses. After the Small Business
Administration certified the company as a Section 8(a) business,1 the company
became eligible for preferences with regard to government contracts. Thereafter, the
company procured several lucrative government contracts, as well as contracts with
large industrial customers.
Ms. Cheatham obtained an advance contract from a publisher for a book in
1980, but by this time life at home was not going smoothly. Mr. Cheatham had an
affair in 1981 which he concealed from Ms. Cheatham until after the parties
separated. Sensing the changes in the relationship, Ms. Cheatham suggested more
marital counseling, but Mr. Cheatham declined, blaming the demands of his business
for his long absences from home.
Mr. Cheatham’s business and personal relationships changed in the early
1990s. In 1991 he helped start another business called Progressive Communications
Technology. The business sells automated operator services, and Mr. Cheatham
owns twenty-five percent of the company. One year later, in 1992, the Pogue
Brothers withdrew from Advanced Integrated Technology, and the company
repurchased their stock. At about the same time, Mr. Cheatham began having an
affair with Diane Murphy who was an employee of Progressive Communications
Technology.
Mr. Cheatham became increasingly distant, and Ms. Cheatham began to
suspect that his relationship with Ms. Murphy was more than simply business. In
early October 1992, Mr. Cheatham announced that “I just can’t do this any more” and
moved out of the house. Mr. Cheatham soon began lavishing extravagant gifts on
1
The Section 8(a) program is a business development program administered by the Small
Business Administration for the benefit of socially and economically disadvantaged firms. See 15
U.S.C.A. § 637(a)(1)(C) (West 1997).
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Ms. Murphy and her daughter, and in early 1993, Mr. Cheatham and Ms. Murphy
began living together as husband and wife. Ms. Murphy quit her job at Progressive
Communications Technology in the spring of 1993. From that time on, except for
some child support and assistance from Ms. Murphy’s parents, Mr. Cheatham has
supported Ms. Murphy and her daughter.
Mr. Cheatham filed for an irreconcilable differences divorce in December
1992. Ms. Cheatham contested the divorce and professed that she desired a
reconciliation. In August 1994, Ms. Cheatham filed an amended counterclaim
seeking a divorce based on irreconcilable differences, cruel and inhuman treatment,
and adultery. The trial court heard the proof during September and October 1994 and
filed its judgment in December 1994. The trial court granted Ms. Cheatham the
divorce based on inappropriate marital conduct. It also determined that the parties
should each receive one-half of the marital estate, which the trial court valued at
$1,108,175. The trial court also directed Mr. Cheatham to pay Ms. Cheatham spousal
support in the amount of $3,000 per month until her death or remarriage. Finally, the
trial court awarded Ms. Cheatham $41,141.98 to defray her legal expenses because
Mr. Cheatham had “attempt[ed] to paint a distorted picture of this martial estate”
during the lengthy and sometimes acrimonious pretrial discovery.
II.
THE DIVISION OF THE MARITAL ESTATE
We begin by considering the division of the marital estate because the manner
in which the trial court allocates marital property and debts can affect its decisions
with regard to spousal support. See Tenn. Code Ann. § 36-5-101(d)(1)(G) & (H)
(Supp. 1997). Mr. Cheatham takes issue with the trial court’s distribution on three
grounds: (1) that the trial court improperly valued his interest in Advanced Integrated
Technology, (2) that the trial court improperly classified four items of property, and
(3) that the overall effect of the trial court’s division of the marital estate and debts
was inequitable.
A.
The Classification of the Property
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Mr. Cheatham argues that the trial court included property in the marital estate
that was not actually marital property. Specifically, he asserts that the trial court
should not have classified a 1987 Porsche and a 1992 Jeep Grand Cherokee that were
owned or leased by Advanced Integrated Technology and a 1991 Honda Accord and
a condominium titled to Diane Murphy as marital property. Ms. Cheatham responds
that including this property in the marital estate was, at worst, harmless error because
the trial court did not place a value on the Porsche and the Jeep and because the trial
court was taking into account the possibility that Mr. Cheatham might have an
equitable interest in Ms. Murphy’s property.
The division of the marital estate necessarily begins with the classification of
the parties’ property. See Brown v. Brown, 913 S.W.2d 163, 166 (Tenn. Ct. App.
1994); McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn. Ct. App. 1993). Tenn.
Code Ann. § 36-4-121 (1996) provides the ground rules for this task by providing the
now familiar definitions for “separate property”2 and “marital property.”3 As a
general matter, property must be owned by one or both spouses at the time of the
divorce in order to be considered marital property. See Brock v. Brock, 941 S.W.2d
896, 900 (Tenn. Ct. App. 1996). Trial courts have broad discretion in classifying and
dividing property in divorce proceedings. See Fisher v. Fisher, 648 S.W.2d 244, 246
(Tenn. 1983); Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996).
The evidence does not support the trial court’s decision to classify these four
items as marital property. Even though the courts may look behind the record title
of property in cases of this sort, see Jones v. Jones, 597 S.W.2d 886, 887 (Tenn.
1979); Langford v. Langford, 220 Tenn. 600, 604, 421 S.W.2d 632, 634 (1967), we
find no evidence in the record that Mr. Cheatham “acquired” any of this property
“during the course of the marriage up to the date of the final divorce hearing.” The
evidence is undisputed that Advanced Integrated Technology, not Mr. Cheatham,
owned or leased the Porsche and Jeep Grand Cherokee. While Mr. Cheatham
conceded that he supported Ms. Murphy financially following the separation, there
is no evidence that he acquired the 1991 Honda Accord or the condominium and then
placed them in Ms. Murphy’s name to prevent them from being considered marital
2
See Tenn. Code Ann. § 36-4-121(b)(2)(A) - (D).
3
See Tenn. Code Ann. § 36-4-121(b)(1)(A) & (B).
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property. By the time of the divorce hearing, the money that Mr. Cheatham had
provided to Ms. Murphy was not in the possession of either party, and accordingly
neither the money nor its proceeds should have been classified as marital property.
Even though we have determined that the trial court’s classification of these
four items of property was erroneous, it does not necessarily follow that we must
overhaul the trial court’s division of the marital estate. Because the trial court
assigned no value to these assets, classifying the Porsche and the Jeep Grand
Cherokee as marital property had no effect upon the overall distribution of the marital
property. The trial court valued Ms. Murphy’s 1991 Honda Accord at $5,000 and her
interest in the condominium at $5,000. We will assess the ramifications of these
classification errors on the overall effect of the division of the marital estate when we
consider whether the trial court’s division of the marital estate was equitable.
B.
The Valuation of the Interest in Advanced Integrated Technology
Mr. Cheatham takes issue with the trial court’s valuation of his 65% interest
in Advanced Integrated Technology. He argues that Ms. Cheatham’s valuation expert
based his opinion on erroneous assumptions and that the value placed on his interest
by the trial court is not supported by the testimony of either party’s expert witness.
We have determined that the trial court’s valuation of Advanced Integrated
Technology is within the range of the valuation evidence.
Mr. Cheatham and the Pogue brothers started Advanced Integrated Technology
after the parties returned from North Carolina. At the time of the divorce, the
company employed 105 persons and, from 1989 to 1993, grossed between
$10,000,000 and $33,000,000 per year. In addition to the government contracts
obtained through the Small Business Administration, the company also had contracts
with DuPont Corporation, Nissan, Northern Telecom, and McDonald-Douglas.
The Pogue brothers, who owned two-thirds of the company’s outstanding
shares, decided to withdraw from the business following a dispute with Mr.
Cheatham. The company purchased their shares for $1,600,000, leaving Mr.
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Cheatham as the sole owner of the company. Following this transaction, Mr.
Cheatham represented that the value of his interest in Advanced Integrated
Technology was as high as $3,942,059. In June 1993, Mr. Cheatham sold a 35.3%
interest in the company to Donnie L. Peters for $690,311, supposedly to honor a prior
commitment made to induce Mr. Peters to join the company.4 Later, in August 1994,
Mr. Cheatham violated an order restraining him from alienating property by giving
a lender the right to purchase twenty percent of the company’s stock in return for a
$1,200,000 loan. Just six weeks before the trial, Mr. Cheatham valued his interest in
the company at $614,595.
After considering the company’s capitalized earnings and net asset value
adjusted for the effect of the preferred shares, Ms. Cheatham’s valuation expert
testified that the value of Advanced Integrated Technology was $942,000. He also
determined that Mr. Cheatham effectively owned 52%5 of the company and that the
value of his interest was $489,840. Mr. Cheatham’s expert valued Mr. Cheatham’s
interest in Advanced Integrated Technology at $187,000 by giving greater weight to
the company’s more recent earnings.
Valuation of marital property is a fact question whose outcome depends on the
proof presented by the parties. The parties have the obligation to present competent
valuation evidence, and they are bound by the evidence they present. See Wallace
v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). When the parties present
conflicting valuation evidence, the trial courts may place a value on the property that
is within the range of the values presented. See Brock v. Brock, 941 S.W.2d at 902;
Koch v. Koch, 874 S.W.2d 571, 577 (Tenn. Ct. App. 1993); Loyd v. Loyd, 860 S.W.2d
409, 411 (Tenn. Ct. App. 1993). Like other fact questions, a trial court’s decision
concerning the value of marital property is entitled to great weight on appeal, and we
will not second-guess the decision unless it is inconsistent with Tenn. Code Ann. §
36-4-121 or is contrary to the preponderance of the evidence. See Brock v. Brock,
941 S.W.2d at 902; Smith v. Smith, 912 S.W.2d 155, 157 (Tenn. Ct. App. 1995).
4
Mr. Peters was already working for Advanced Integrated Technology, and the company paid
him a bonus sufficient to enable him to purchase the stock.
5
Even though Mr. Cheatham owned approximately 65% of the company, Ms. Cheatham’s
expert determined that the value of his interest was diluted by the outstanding option to purchase the
20% interest in the company.
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Mr. Cheatham challenges the opinion of Ms. Cheatham’s valuation expert on
the ground that the expert overlooked the pattern of declining earnings over the past
five years and failed to give more weight to the company’s recent earnings. Our
review of the testimony of Ms. Cheatham’s expert does not support these criticisms.
Ms. Cheatham’s expert determined that the company’s earnings history did not show
steadily declining revenues but rather a mixed bag of profits and losses because of
several non-recurring expenses. He also considered each one of the valuation
techniques discussed in Blasingame v. American Materials, Inc., 654 S.W.2d 659,
666 (Tenn. 1983) and then based his opinion on the results of the capitalization of
earnings method and the net asset value method.
The choice of the method or methods used to value a corporation depends upon
the unique status of each corporation. See Wright v. Quillen, 909 S.W.2d 804, 810
(Tenn. Ct. App. 1995). We find no basis for discounting the conclusion of Ms.
Cheatham’s valuation expert. Accordingly, the evidence does not preponderate
against his conclusion that Mr. Cheatham’s interest in Advanced Integrated
Technology was worth $489,840.
Even though Ms. Cheatham’s expert valued Mr. Cheatham’s interest in
Advanced Integrated Technology at $489,840, it does not necessarily follow that the
trial court erred by placing a $600,000 value on this interest. Rather than rounding
up the expert proof by $111,000 as Mr. Cheatham claims, the trial court was actually
accrediting Mr. Cheatham’s own representations about the value of his interest in the
company. In a personal financial statement dated August 9, 1994, Mr. Cheatham
stated that his interest in Advanced Integrated Technology was worth $614,595. Mr.
Cheatham is competent to testify concerning the value of his company and is bound
by his representations. We find no error in the trial court’s decision to place a value
on Mr. Cheatham’s interest in Advanced Integrated Technology that is consistent
with his own valuation just six weeks before trial.
C.
The Division of the Marital Estate
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The trial court undertook to award each party exactly one-half of the net value
of the marital estate. Nevertheless, Mr. Cheatham asserts that the trial court’s
division was inequitable because the assets he received were “financially unstable”
and “burdened by heavy indebtedness” while the assets Ms. Cheatham received were
liquid and unencumbered. After adjusting for the classification errors, we find that
the overall effect of the division of the marital property is equitable.
Trial courts have broad discretion when dividing the martial property and
allocating the martial debts. See Fisher v. Fisher, 648 S.W.2d at 246; Wade v. Wade,
897 S.W.2d 702, 715 (Tenn. Ct. App. 1994); Koch v. Koch, 874 S.W.2d at 579. We
customarily give these decisions great weight on appeal, see Wilson v. Moore, 929
S.W.2d at 372, and we decline to alter these decisions unless they are inconsistent
with the factors in Tenn. Code Ann. § 36-4-121 (1996) or are unsupported by the
evidence. See Brown v. Brown, 913 S.W.2d at 168; Mahaffey v. Mahaffey, 775
S.W.2d 618, 622 (Tenn. Ct. App. 1989).
Trial courts have a statutory mandate to divide marital property equitably. See
Tenn. Code Ann. § 36-4-121(a)(1). Their distribution, however, is not required to be
mathematically equal to be equitable. See Cohen v. Cohen, 937 S.W.2d 823, 832
(Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988); Herrera v. Herrera,
944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). In addition, each party is not entitled
to receive a share of each piece of marital property in order for the division to be
equitable. See Brown v. Brown, 913 S.W.2d at 168.
The trial court’s purpose in dividing the marital estate was (1) to award Mr.
Cheatham his two businesses and his commercial real estate holdings and (2) to
award Ms. Cheatham more liquid assets that could provide her with future support.
The trial court also required Mr. Cheatham to be responsible for the debts related to
his business and required Ms. Cheatham to be responsible for her personal bankcard
debts. Because the value of the assets Mr. Cheatham received were greater than those
Ms. Cheatham received, the trial court equalized the distribution by requiring Mr.
Cheatham to pay Ms. Cheatham an additional $154,295.50 either in a lump sum or
over a five-year period at ten percent interest.
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This distribution reflects that the trial court properly weighed the relevant
factors set out in Tenn. Code Ann. § 36-4-121. The marriage is of long duration.
During the early years of the marriage, Ms. Cheatham sacrificed her own formal
education to provide some of the financial support that allowed Mr. Cheatham to
obtain his undergraduate and graduate degrees. She contributed throughout the
marriage as a homemaker and mother, and her efforts enabled Mr. Cheatham to
become successful in business. Now, at the age of fifty-four, Ms. Cheatham is less
employable than Mr. Cheatham, and thus her earning capacity and her ability to
accumulate capital assets in the future is inferior to his. Based on her contributions
to the marriage, her future employment prospects, and her physical condition, we find
that the trial court properly awarded her one-half of the marital estate.
We determined earlier in Section II(A) that the trial court erred by classifying
Ms. Murphy’s 1991 Honda Accord and the equity from a condominium in her name
as marital property. The combined value of this property is $10,000. To offset this
error, we have determined that the property division should be modified by
eliminating Ms. Cheatham’s one-fourth interest in the Sam Johnson property and by
awarding Mr. Cheatham the entire interest in this property.
III.
THE AWARD OF LONG-TERM SPOUSAL SUPPORT
Mr. Cheatham takes issue with the trial court’s decision to require him to pay
Ms. Cheatham spousal support in the amount of $3,000 per month until her death or
remarriage. He insists that the trial court ignored the legislative presumption favoring
rehabilitative support as well as the proof that Ms. Cheatham is not economically
disadvantaged because of the amount of marital property she has received and
because of her income potential as a writer. We find that the trial court’s decision is
consistent with the evidence and the factors in Tenn. Code Ann. § 36-5-101(d)(1)
(Supp. 1997).
There are no hard and fast rules for spousal support decisions. See Crain v.
Crain, 925 S.W.2d 232, 233 (Tenn. Ct. App. 1996). Trial courts have broad
discretion in setting the amount and duration of spousal support. See Garfinkel v.
Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996); Jones v. Jones, 784 S.W.2d
349, 352 (Tenn. Ct. App. 1989). Their decisions should be guided by the unique facts
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of each case and by a careful balancing of the factors in Tenn. Code Ann. § 36-5-
101(d)(1). See Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn. Ct. App. 1994);
Loyd v. Loyd, 860 S.W.2d at 412. Appellate courts customarily decline to second-
guess trial courts’ spousal support decisions unless they are not supported by the
evidence or are contrary to the public policy embodied in the applicable statutes. See
Brown v. Brown, 913 S.W.2d at 169; Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn.
Ct. App. 1986).
Even though fault is a relevant consideration when setting spousal support, see
Tenn. Code Ann. § 36-5-101(d)(1)(K), spousal support decisions are not intended to
be punitive. See Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn. Ct. App. 1984);
McClung v. McClung, 29 Tenn. App. 580, 584, 198 S.W.2d 820, 822 (1946). Their
purpose is to assist the economically disadvantaged spouse to become and remain
self-sufficient and, when rehabilitation is not feasible, to mitigate the harsh economic
realities of divorce. See Brown v. Brown, 913 S.W.2d at 169. The principle factors
influencing spousal support decisions include the need of the recipient spouse and the
ability of the obligor spouse to pay. See Varley v. Varley, 934 S.W.2d 659, 668
(Tenn. Ct. App. 1996); Crain v. Crain, 925 S.W.2d at 234; Kincaid v. Kincaid, 912
S.W.2d 140, 144 (Tenn. Ct. App. 1995).
Tenn. Code Ann. § 36-5-101(d)(1) reflects a preference for temporary,
rehabilitative support, as opposed to long-term support. See Wilson v. Moore, 929
S.W.2d at 375. This preference does not entirely displace other forms of spousal
support when the facts warrant longer term or more open-ended support. See Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816 S.W.2d 735, 739
(Tenn. 1991). Trial courts have the prerogative to determine the type of spousal
support that best fits the circumstances, and thus trial courts may award several
different kinds of support in the same case when the facts warrant it.
Notwithstanding the property she received in the division of the marital estate,
Ms. Cheatham is economically disadvantaged compared to Mr. Cheatham and to her
pre-divorce standard of living. She is now 54 years old and is suffering from sickle
cell disease. While she has received some modest income from her writing and
photography during the past seventeen years, she has been out of the workplace for
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approximately twenty years. Her prospects for employment and for significant
financial rehabilitation at this stage in her life are guarded at best. In light of Ms.
Cheatham’s education, current health, and duration of the marriage, we concur with
the trial court’s conclusion that she is entitled to long-term spousal support.
We have noted in other cases that long-term spousal support may be used to
mitigate the harsh economic effects of divorce on an innocent spouse. See
Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn. Ct. App. 1980). While
divorcing parties often lack sufficient income or assets to enable both of them to
maintain their pre-divorce standard of living, see Brown v. Brown, 913 S.W.2d at
169, an obligor spouse may occasionally be able to provide some “closing in money”
to enable a former spouse to approach his or her former economic position. See
Aaron v. Aaron, 909 S.W.2d at 411. In this case, Mr. Cheatham is financially able
to provide “closing in money” to Ms. Cheatham, and Ms. Cheatham has demonstrated
that she needs and deserves long-term support. Accordingly, we affirm the trial
court’s decision to order Mr. Cheatham to pay Ms. Cheatham $3,000 per month until
her death or remarriage.
IV.
THE AWARD FOR MS. CHEATHAM’S LEGAL EXPENSES
Mr. Cheatham insists that the trial court erred by ordering him to pay Ms.
Cheatham an additional $41,141.98 to defray her legal expenses. He argues that Ms.
Cheatham has received sufficient liquid assets to enable her to pay her own legal
expenses. Ms. Cheatham responds that Mr. Cheatham’s conduct during discovery
provided adequate grounds for the trial court’s order. We have determined that the
award for legal expenses should be reduced.
Awards for legal expenses in divorce litigation are considered to be additional
awards of spousal support. See Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct.
App. 1988); Raskind v. Raskind, 45 Tenn. App. 583, 601, 325 S.W.2d 617, 625
(1959). They are appropriate when an economically disadvantaged spouse lacks
funds to defray his or her legal expenses, see Harwell v. Harwell, 612 S.W.2d 182,
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185 (Tenn. Ct. App. 1980), but are inappropriate when the spouse seeking the award
is able to pay his or her own lawyer either from his or her own earnings or from the
assets received in the divorce. See Inman v. Inman, 811 S.W.2d 870, 874 (Tenn.
1991); McCarty v. McCarty, 863 S.W.2d 716, 722 (Tenn. Ct. App. 1992).
These awards for legal expenses should be distinguished from monetary
sanctions for discovery abuse permitted by Tenn. R. Civ. P. 37.01(4) and Tenn. R.
Civ. P. 37.02. We have approved the imposition of monetary sanctions for discovery
abuse in a divorce case following an appropriate motion and hearing. See Mansfield
v. Mansfield, App. No. 01A01-9412-CH-00058, 1995 WL 643329, at *8 (Tenn. Ct.
App. Nov. 3, 1995) (No Tenn. R. App. P. 11 application filed). However, we have
also held that awards for additional legal expenses caused by obstructive behavior
should not be awarded in the absence of a proper request for monetary sanctions. See
Turner v. Turner, App. No. 01A01-9506-CV-00255, 1997 WL 136448, at *13 (Tenn.
Ct. App. Mar. 27, 1997) (No Tenn. R. App. P. 11 application filed).
Ms. Cheatham did not pursue monetary sanctions against Mr. Cheatham in
accordance with Tenn. R. Civ. P. 37. The trial court never held a hearing concerning
the propriety of sanctions and never determined the portion of Ms. Cheatham’s legal
expenses that could properly be applicable to Mr. Cheatham’s inappropriate conduct
during discovery. Accordingly, we cannot review the trial court’s decision to award
Ms. Cheatham $41,141.98 in legal expenses using the standards of Tenn. R. Civ. P.
37. Rather, we must review the attorney fee award using the standards traditionally
used to review awards for legal expenses in divorce cases. See Turner v. Turner,
supra, 1997 WL 136448, at *13.
As a result of the division of the marital property, Ms. Cheatham has received
assets valued at approximately $500,000, including a $154,000 cash payment.
Accordingly, she has received sufficient liquid assets to enable her to pay her legal
bills. However, she should not be forced to bear the full burden of these expenses if
she will have to dispose of assets that she will need later to support herself. Based
on the evidence concerning her health, education, and prospects for employment, Ms.
Cheatham will most likely be required to use a large portion of the property she
received in the division of the marital estate to provide housing for herself and to
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support herself in the future. She is, however, not without some ability to support
herself. Accordingly, we reduce the award for legal expenses from $41,141.98 to
$15,000.
V.
THE MODIFICATION OF THE DECREE
As a final matter, Mr. Cheatham asserts that the trial court should not have
amended the December 2, 1994 decree because Ms. Cheatham’s motion was not
timely filed. We find little merit to this argument because the December 2, 1994
decree had not disposed of all the issues between the parties.
The December 2, 1994 decree allocated Ms. Cheatham’s bank card debts to her
but failed to specifically allocate the responsibility for the other debts. On April 19,
1995, Ms. Cheatham filed a motion requesting the trial court to address the remaining
debts and to order that Mr. Cheatham should be responsible for them. In its June 2,
1995 order amending the divorce decree, the trial court specifically found that it had
“through inadvertence . . . omitted from the Final Divorce Decree the provision
concerning the parties’ joint personal and business debts other than those specifically
ordered to be paid by the Wife.”
Under these circumstances, Ms. Cheatham’s post-judgment motion was timely
and proper. Tenn. R. Civ. P. 60.01 permits the correction of clerical mistakes in
judgments and orders, and Tenn. R. Civ. P. 60.02(1) permits relief from judgments
because of inadvertence. When Ms. Cheatham filed a timely motion to call attention
to the trial court’s oversight, the trial court acknowledged that it had overlooked
allocating all the parties’ debts in the original order and then entered an order
correcting its own inadvertent oversight. We find no fault with Ms. Cheatham’s
motion or with the trial court’s response.
VI.
We affirm the judgment as modified herein and deny Ms. Cheatham’s request
for attorney’s fees for this appeal. We remand the case to the trial court for whatever
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further proceedings are required, and we tax the costs of this appeal in equal
proportions to Eugene Calvin Cheatham and his surety and to Karyn Elizabeth
Cheatham for which execution, if necessary, may issue.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
__________________________________
BEN H. CANTRELL, JUDGE
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