The opinion
IN THE COURT OF APPEALS OF TENNESSEE
DOROTHY LOUISE BECK, )
FILED
C/A NO. 03A01-9601-CV-00023
) McMINN COUNTY CIRCUIT COURT
Plaintiff-Appellee, ) March 4, 1996
)
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
v. ) HONORABLE JOHN B. HAGLER,
) JUDGE
)
)
)
WENDELL LEE BECK, ) AFFIRMED IN PART
) VACATED IN PART
Defendant-Appellant.) REMANDED WITH INSTRUCTIONS
PERRY P. PAINE, JR. and H. ALLEN BRAY of PAINE, GARRETT & BRAY,
Maryville, for Appellant
H. CHRIS TREW of HIGGINS, BIDDLE, CHESTER & TREW, Athens, for
Appellee
O P I N I O N
Susano, J.
1
This is a divorce case. The lower court's judgment
dissolved a marriage that had endured, tumultuously at times, for
over 29 years. The trial judge granted the 46-year old
plaintiff, Dorothy Louise Beck (Wife), a divorce on the ground of
adultery; awarded her custody of the parties' two minor
children1; established the child support obligation of the 47-
year-old defendant, Wendell Lee Beck (Husband), at $300 per
month; valued the parties' net marital estate at $372,040, which
he divided equally between them; and awarded Wife alimony in
solido of $25,000 to be paid out of Husband's share of the
proceeds from the auction sale of a portion of the parties'
Englewood farm. Husband appeals, raising issues that present the
following questions:
1. Does the evidence in the record
preponderate against the trial court's
finding that Wife was entitled to an absolute
divorce on the ground of adultery?
2. Did the trial court abuse its discretion
in dividing the parties' marital property?
3. Did the trial court abuse its discretion
in awarding Wife $25,000 alimony in solido?
I
Our review of this non-jury case is de novo; however,
the record comes to us accompanied by a presumption of
correctness that we must honor unless the evidence preponderates
against the trial court's findings. T.R.A.P. 13(d); Union
1
The parties had four children, two of whom are now emancipated by age.
The two minor children, both boys, were 12 and 16 years old respectively at
the time of trial.
2
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993);
Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. App. 1992).
Both of the parties sought a divorce. The defendant
admitted that he had engaged in an adulterous relationship during
the marriage. He attempted to justify his conduct by implying
the plaintiff was guilty of like conduct2. He also testified to
other perceived shortcomings of Wife. Much of his testimony and
the testimony of others supporting him were disputed by Wife.
The witnesses' credibility was an issue for the trial judge that
he had to evaluate in order to decide whether a divorce was
justified by the proof, and, if so, to whom it should be granted.
Generally speaking, credibility of witnesses is for the trial
court. Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. App. 1990);
Brown v. Weik, 725 S.W.2d 938, 946 (Tenn. App. 1983).
In this case, we are not in a position, based on a
"cold" record, to second-guess the trial judge's credibility-
driven determination that Wife, and not Husband, was entitled to
a grant of absolute divorce. In any event, our de novo review
persuades us that the evidence does not preponderate against the
trial court's findings regarding the issue of divorce. The
appellant's first issue is found to be without merit.
II
The trial court determined that the parties' total net
marital estate was properly valued at $372,040. One of the
2
The trial judge expressly found to the contrary.
3
assets "in the mix" was a farm in Englewood that contained
between 209 and 246 acres3. The trial court found that the
Englewood farm had a gross market value of $250,700. The
evidence does not preponderate against this finding--a finding
that is not challenged by Husband. What Husband does challenge
is the trial court's determination that the Englewood farm should
initially be allocated to Wife with an assigned net value of
$197,700. Husband argues that the trial court should not have
assigned this asset to Wife at a value that takes into account an
admitted first mortgage indebtedness of $53,000. Under the
unique circumstances of this case, we agree with Husband.
During the parties' marriage, they borrowed money from
First Citizens Bank for their daughter's use in finishing her
house. A deed of trust was placed against 25 acres of the
Englewood farm to secure this indebtedness. Apparently, neither
the daughter nor her husband signed the note to the bank;
however, the parties to this divorce action acknowledged at trial
that it was agreed between the parties and their daughter that
she would make the payments on that obligation; that all of the
note payments to the date of trial had been made by the daughter;
and that the note had never been in default.
It is clear that the obligation in question--the
balance of which was $53,000 at the time of trial--was a real
obligation of the parties. They signed the note and it was
secured by a small portion of their jointly-owned farm. No one
3
The testimony was that the parties' deed called for 209 acres while the
tax map reflected multiple tracts containing 246 acres.
4
else was obligated on the note. It is clear that this note must
be addressed in this case; however, we do not believe that this
obligation should be disposed of based upon the assumption that
Wife will be called upon to satisfy this debt. More than likely,
given the history of this obligation, neither of the parties will
be called upon to pay this debt.
We believe the trial court abused its discretion4 in
that the evidence preponderates against the trial court's
implicit finding that Wife will ultimately be burdened with
repaying this $53,000 obligation. The trial court's finding is
hereby vacated. On remand, the trial court will enter an order
modifying its judgment so as to award the Englewood farm to Wife
at an assigned value of $250,700, its gross value. That order
will also provide that, as between the parties, each will be
responsible for half of the remaining balance of the obligation
to the bank in the event their daughter does not pay it. The
order will also provide that each party will indemnify the other
party against any loss arising out of the portion of the debt
that the latter party is not obligated to pay under the terms of
this opinion. We believe that this resolution is the fair way to
handle this particular liability.
4
The term "abuse of discretion" was defined by the Supreme Court in
another context in the case of Foster v. Amcon International, Inc., 621 S.W.2d
142, 145 (Tenn. 1981):
The term has too often implied intentional wrong, bad
faith or misconduct on the part of a trial judge. In
our view, "abuse of discretion" was never intended to
carry such a meaning, nor to reflect upon the trial
judge in any disparaging manner. To us the phrase
simply meant an erroneous conclusion or judgment on
the part of the trial judge--a conclusion that was
clearly against logic (or reason) and not justified.
5
The trial court determined that an equitable
distribution of property in this case was an equal division. The
evidence does not preponderate against that finding; however, the
adjustment that we have made in the trial court's division of
that property requires that we further modify the trial court's
judgment.
In dividing the parties' property, the trial court
found that 70 acres of the Englewood farm initially allocated to
Wife should be auctioned to equalize the distribution of property
between the parties. We do not disagree with this approach; but
obviously, the trial court's judgment of equalization will have
to reflect that the total net marital assets to be distributed,
ignoring the $53,000 debt, are worth $425,040 instead of the
$372,040 found by the trial court. The following is a comparison
between the distribution found by the trial court and that found
by this court, before the adjustment required to accommodate the
auction sale of the 70 acres off of the Englewood farm:
By By
Trial Court Court of Appeals
Distributed to Wife $232,2905 $285,2906
Distributed to Husband 139,750 139,750
$372,0407 $425,040
======== ========
5
Both of the "distributed to Wife" figures include the 70 acre tract to
be auctioned.
6
See footnote 6 of this opinion.
7
The trial court equalized this disparity in its decree when it directed
the disposition of the net proceeds from the 70 acre tract.
6
The trial court anticipated that the 70 acres would
bring $1,000 per acre. He directed that $1,439 in expenses8,
along with the expenses of the auction, should be paid from the
proceeds of the auction sale. We agree. We further believe that
the judgment should be modified to provide that Husband should
arrange for the auction of the 70 acres since it is clear that
all or most of the net proceeds from the sale will go to him. If
the auction sale produces net proceeds that result in Husband
getting less than half of the net marital assets, he shall be
entitled to all of the net proceeds9. On the other hand, if the
auction sale produces a bid that results in a disproportionate
share of the net assets going to Husband, Wife shall be entitled
to share in those proceeds to the extent necessary to equalize
the division of marital assets. The judgment below will be
modified by the trial court to reflect these changes to the
division of property decreed by the trial court.
III
Husband's final issue brings into question the trial
court's decree that Husband pay Wife $25,000 alimony in solido
when the auction sale of the 70 acres is finalized. We believe
the trial court abused its discretion in making this award
because the evidence preponderates against the trial court's
implicit findings supporting it.
8
The $1,439 represents court reporter charges and a real estate
appraiser's fee.
9
We realize that this portion of our opinion may result in Husband
getting somewhat less than half of the net marital assets; however, we believe
that the division will still be equitable, given the facts of this case.
7
T.C.A. § 36-5-101(d)(1)(A)-(L) sets forth the factors
to be considered by a trial court in its alimony determination.
Of these factors, the three most important are the needs of the
requesting party, the resources of the other spouse, and the
relative fault of the parties. Hawkins v. Hawkins, 883 S.W.2d
622, 625 (Tenn. App. 1994).
In the instant case, there was no proof of Wife's
current needs. Nowhere in the 36 exhibits and the three volumes
of transcript is there an affidavit of expenses or testimony
regarding Wife's anticipated monthly outlays for food, clothing,
telephone, health insurance, gasoline for her car, utilities, and
the like. Neither of the parties offered an analysis of the
other party's business or personal checking account. While there
is evidence in the record indicating that each of the parties
owned and operated a florist shop, there is no credible, helpful
evidence of the spendable funds per month spun off by either of
these businesses.
Wife testified that she is currently receiving $210 per
month from the rental of some of her farm land. She also
receives $100 per month from the rental of a house formerly
occupied by her parents. Each of the parties has a tobacco
allotment. It is not clear from the record how much each of the
parties currently receives from that allotment.
Wife testified that she paid all of the family's living
expenses after Husband moved out in May, 1989. Offsetting this
testimony somewhat was testimony that Husband sent Wife one check
8
for $150 and that he paid $3,508.41 on past-due taxes on the
Englewood farm; however, there was evidence that Wife had access
to unneeded funds because she purchased an automobile for one of
her emancipated daughters.
Wife argues that the fact she did not have the funds to
pay the property taxes coupled with the fact that Husband had to
redeem the Englewood farm shows that she needed alimony and that
Husband had the resources to provide alimony. She also relies
upon the fact that on one occasion she was without gas for
heating purposes, and the further fact that she passed
"insufficient funds" checks after the parties separated. All of
this proof10 is certainly some indication that she had a need at
the time of the incidents; but this was not the issue before the
trial court. The real issue was the extent of her current needs
--her needs at the time of trial. There is simply no proof
before us that Wife had needs that were not being funded by her
income from rentals, her tobacco allotment, and her florist shop.
We cannot speculate on these matters. Further, we cannot award
alimony beyond an individual's demonstrated needs. Alimony in
excess of need is punitive in nature. Cf. Duncan v. Duncan, 686
S.W.2d 568, 571 (Tenn. App. 1984). Alimony is not designed to
punish an errant spouse. Id.
Accordingly, we find that the trial court abused its
discretion when it awarded Wife $25,000 alimony in solido. The
evidence preponderates against that award. It is hereby vacated.
10
The "gas" incident occurred when the now emancipated children "were
younger." The record does not indicate when Wife passed "bad" checks. The
taxes were for a number of years. All of the incidents relied upon by Wife
are more anecdotal than substantive proof of a current need for support.
9
On remand, the trial court will enter an order deleting its
$25,000 alimony in solido award.
Except as vacated herein, the judgment of the trial
court is hereby affirmed. This case is remanded to the trial
court for further proceedings consistent with this opinion and
for collection of costs assessed below. Exercising our
discretion, we tax the costs on appeal one-half to each party.
_______________________________
Charles D. Susano, Jr., J.
CONCUR:
____________________________
Houston M. Goddard, P.J.
____________________________
Don T. McMurray, J.
10