modifying a trial court’s alimony award to include an award of alimony in futuro upon termination of the transitional alimony award
How later courts described this case
- modifying a trial court’s alimony award to include an award of alimony in futuro upon termination of the transitional alimony award
- noting appellate court may treat issue not raised at trial as waived
- “The appellate court may treat issues that are not raised on appeal as being waived.”
- “Issues that are not raised in the trial court may . . . be deemed waived.”
Written by the judges who cited it.
The opinion
ORDER DENYING PETITION FOR REHEARING
On June 9, 2009, Appellee Frank Lee Watson, Jr. timely filed a petition for rehearing in the above styled case pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure. On June 23, 2009, at this Court’s direction, Appellant Carol Ann Vick Watson filed a response to the Appel-lee’s petition. Although we are denying the petition to rehear, we find it necessary to address one of the issues raised in the petition.
In his petition, the Appellee argues that there was a concurrent finding of the special master and the trial court as to the value of Randell Corporation, and as such, that valuation is binding on this Court. Specifically, the Appellee argues that the court and the special master made a concurrent finding that the value of Randell Corporation was negative $119,000, and that this Court does not have the authority to modify the value of Randell Corporation to $300,000.
We recognize that when the chancery court and a special master make a concurrent finding of fact, that finding is binding on the appellate court if it is supported by any material evidence. See T.C.A. § 27-1-113 (2000); see also Aussenberg v. Kramer, 944 S.W.2d 367, 370 (Tenn.Ct.App.1996). However, under the facts of this case, there has been no such concurrent finding.
The report of the special master filed with the trial court listed a value for Randell Corporation of negative $119,000. However, as stated in the report, the negative $119,000 valuation was to be accompanied by the trial court’s recognition of Randell Corporation’s $419,000 debt to the Appellee as a receivable to him in “the same dollar amount.” In her testimony before the trial court, the special master made it clear that the debt owed to the Appellee should be handled consistently on the financial statements of both Randell Corporation and the Appellee, such that if Randell Corporation’s $419,000 debt was not included as an asset of the Appellee, then it should not be treated as a liability of Randell Corporation. In its findings, the trial court noted the special master’s negative $119,000 valuation of Randell Corporation listed in the special master’s report, and found that the value of Randell Corporation as a marital asset was zero. However, contrary to the special master’s proviso, the trial court did not concomitantly allocate to the Appellee a receivable in the amount of $419,0000. Under these circumstances, we conclude that there was no concurrent finding on the issue of the valuation of Randell Corporation that was binding on the appellate court.
The petition for rehearing is denied. IT IS SO ORDERED.