Haren v. Haren

IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION FILED January 13, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

TERESA ANN HUGHES HAREN, ) C/A NO. 03A01-9707-CV-00253 ) Plaintiff-A ppellant, ) McM INN CIR CUIT ) v. ) HON. EARLE G. MURPHY, ) JUDGE JAMES SKYLER HAREN, ) ) MODIFIED AND Defendant-Appellee. ) REMANDED

ROG ER E. JE NNE , JENN E, SCO TT & BRY ANT , Cleveland , for Plaintiff-A ppellant.

JAMES F. LOGAN, JR., LOGAN, THOMPSON, MILLER, BILBO, THOMPSON & FISHER, P.C., Cleveland, for Defendant-Appellee.

O P I N IO N

Franks, J.

In this divorce action the appeals focus on the Trial Judge’s custody determination, the award of alimony and child support, and the division of marital assets.

Appellant wife and appellee husband were married on December 16, 1981. Both parties were originally from the Athens area. After their marriage, they move d to Ch arlotte, N orth Ca rolina, w here ap pellee w orked f or an en gineerin g firm. He was transferred a number of times, and the parties eventually returned to the Athens area. After working for his father’s construction business for about three *2 years, appellee started his own firm, the J.S. Haren Company. The Harens have two sons wh o were 1 0 and 14 at the time of trial.

The wife filed for divorce on January 16, 1995, and husband filed an answer a nd coun ter-compla int. Each co mplaint alleg ed inappro priate marital c onduct, sough t custod y of the ch ildren, an d an eq uitable d ivision o f the pa rties’ asse ts.

Following trial, the Court granted the wife a divorce on the grounds of inappropriate marital conduct, and awarded the parties joint custody of the children with prima ry physical custody of the younger c hild to the w ife, and the o lder child to the hus band.

The Court ordered the husband to pay child support of $640.00 a month, and rehabilitative alimony of $2,00 0.00 a month fo r forty-eight months. The Co urt did not requ ire the wife to pay any child su pport. The court value d the marital e state at $1,750,000.00 an d awarded 60 % to the husba nd and 40% to the wife. The w ife’s 40% comprised the house, furniture, her car, a boat and $320,000.00 in cash.

The wife contends the Trial Court erred in granting the husband custody of their oldest son. Trial courts have wide discretion in matters of custody, and we will no t interfer e, absen t an imp roper e xercise of this d iscretion . Grant v. Grant, 286 S.W.2d 3 49 (Tenn . App. 195 4). In this case, th e Trial Co urt properly exe rcised its discretion.

The Tria l Court pro perly considere d both par ties’ suitability. Both parties testified about their interest in the children’s welfare. Additionally, the Trial Court heard testimony from two psychologists. Also, the Trial Court noted that the older child wanted to live with his father. Under T.C.A. §36-6-106, the court may consider the reasonab le preference of a ch ild twelve years of age or older.

The husband admitted having extramarital affairs. A party’s misconduct may reflect upon his fitness as a custodian, and may therefore be considered in making *3 custod y determi nations . Barnhill v. B arnhill, 826 S.W.2d 443, 453 (Tenn. App. 1991). Se xual infide lity or indiscretion, ho wever, “d oes not ipso facto disq ualif y a parent from receiving custody of children.” Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. App. 1989). In this case, the evidence did not preponderate against the Trial Judge’s determination. T .R.A.P. Rule 13(d).

The wif e also argue s the Trial Jud ge should have recu sed himse lf because he previously made a temporary custody determination. The wife moved for recusal, which the Trial Court denied. “The determination of whether to recuse onesel f rests w ithin the sound discretio n of the trial judg e. “Ellison v. Alley, 902 S.W.2d 415, 418 (Tenn. App. 1995). The appellant’s Motion for Disqualification alleged that th e Trial Co urt’s tempo rary custody ruling made it imp roper for h im to decide the issue at trial. Merely issuing a ruling adverse to a particular party is not, by itself, ev idence of bias or preju dice. See Herrera v. Herrera, 944 S.W.2d 379, 392 (Tenn. App. 1996). We find no error in the Court’s denial of the motion.

Both parties contest the award of rehabilitative alimony. The Trial Court ordered the appellee to pay $2,000.00 a month for forty-eight months. The wife argues the aw ard wa s insuff icient, w hile the h usban d insists it w as exce ssive. Gene rally, the am ount of alimon y is a matte r of disc retion f or the C ourt. Houghland v. Houghland, 844 S.W.2d 619 (Tenn. App. 1992). Appellate courts do not disturb a trial cou rt’s awa rd of ali mony un less the tr ial court manif estly abus es discre tion. Ingram v. Ingram, 721 S.W.2d 26 2 (Tenn. App . 1986). We con cur with the Judge’s award of alim ony in this case. See T.C.A . §36-5 -101(d )(1).

The wif e is a proper candidate f or rehabilitation . At the time o f trial, she was 39 years old and in good health. She had completed approximately three years of college and plans to return to obtain her degree. After graduation, she hopes to attain a teach ing position . The dura tion of the a ward sho uld be suf ficient for h er to *4 comp lete her tr aining a nd obta in suitab le emp loyment.

Both parties question the amount of alimony. Generally, a divorce should not infli ct undu e econ omic h ardship on an in nocen t spous e. Brown v. Brown, 913 S.W.2d 1 63, 169 (Tenn. A pp. 1994). Spousa l support awards are n ot, however, intende d to be p unitive. Id. The notio n that divorc e should n ot econom ically prejudice an innocent spouse must also be tempered by the factors listed in T.C.A. §36-5 -101(d )(1). Id. at 169-170.

T.C.A. §36-5-101(d)(1) lists factors for the trial court to consider. The parties were married for fifteen years and both are in good health. The husband has a degree from Georgia Institute of Technology, and has reported income in excess of $200,000.00 a year in the past. The wife has never worked outside the home, and has yet to complete her college education . In this case, the parties enjoyed a relatively high standard of living d uring the marriage. The husband’s incom e has, however, decline d recen tly. The pa rties hav e offe red con flicting e xplana tions fo r this dec line. The husband attributes it to the vicissitudes of the construction business, and changes in the com pany’s projec ts. The wif e claims that th e husban d presented an improp erly low picture of his assets to the Court. Additionally, the Trial Court awarded the wife 40% of the marital estate, including cash. Considering these awards in favor of the wife, th e amo unt of a limony w as not im proper .

Both parties also contest the amount of the child support. The wife argues that it is too low, while the h usband contend s it is excessive. The Trial Cou rt set the wife’s child support obligations at $640.00 a month for the younger child. The child su pport g uideline s create a rebutta ble pres umptio n of the proper suppo rt amou nt. T.C.A. §36-5-101(e)(1). If the Trial Court deviates from the guidelines, it must make a written finding to supp ort its var iance. Id. In this case, $640.00 a month is less than the amount suggested by the guidelines.

To determ ine the prop er amoun t of suppo rt under the g uidelines, it is first necessary to determine the husband’s gross income. The husband’s 1995 federal income tax return lists the following sources of income: $66,741.00 wages, $278.00 taxable interest income, $43.00 dividend income, $61,836 capital gains, ($960.00 other gains, $6,309.00 pensions and annuities, and $3,207.00 farm income. All these sources count in determining gross income under the guidelines. The sources yield an initial gross income of $139,374.00. The husband’s farm expenses, not including depreciation, totaled $54,661. Thus, his gross income is $84,713.00.1

Child support paymen ts are based on a flat percen tage of the obligor’s net income. Net income is determined by subtracting from gross income FICA, the amount of withholding tax deducted for a single wage earner claiming one withholding allowance, and any other child support obligations. The husband’s tax return shows federal withholdings of $12,673.00, Social Security withholdings of $3,794.00 and Medicare withholdings of $1,030.00. These amounts reduce his net income to $67,21 6.00. Multiplying by 21% to d etermine the proper am ount of support for one ch ild, the total yearly obliga tion is $14,11 5.00 or $1 ,176.00 a m onth. This is the pres umptiv ely prope r amou nt unde r the Gu idelines .

The Trial Judge did not make an express finding of the husband’s net income, and it is evident from the briefs and argument of the parties’ attorneys, that the Judge did not take into account all of the husband’s income as required under the guidelines. Accordingly, we establish the child support at $1,176.00 per month.

On the issue of the division of marital property, we conclude the Trial Judge made an equitable distribution between the parties. Tennessee is a dual proper ty jurisdictio n, Batson v. Batson, 769 S .W.2d 849, 85 6 (Ten n. App . 1988) .

1 The husband also apparently drives a company car. While this car counts as a source of income under the Guidelines, the record contains no evidence of its value.

T.C.A. §36-4-121 provides only for the division of marital property. In this case, the Trial Court did not make specific findings concerning the marital or separate status of each p iece of proper ty. Presum ably, he fo und the proper ty at issue to be ma rital. See Herrera v. Herrera, 944 S.W.2d 3 79, 389 (Tenn. A pp. 1996).

Because the value of marital property is a question of fact, the Trial Court’s decision is presumed to be correct unless the evidence preponderates otherw ise. See Ha rdin v. Ha rdin, 689 S.W.2d 152, 154 (Tenn. App. 1983). The Trial Court valued the marital estate at $1,750,000.00. Both parties submitted “estimates” of values. We conclude that the Trial Court’s evaluation was “within the range of the eviden ce subm itted” an d shou ld not b e disturb ed on a ppeal. Wallace v. Wallace, 733 S.W.2d 102, 10 7 (Tenn. App . 1987).

The husband contends the Court did not give him proper credit for approxim ately $380,00 0.00 in gifts f rom his fa ther. Such g ifts are consid ered separ ate property under T.C.A. §36-4-121(b)(2)(D). The only evidence of these gifts, howev er, was a n umber o f checks a nd depo sit slips, only one o f which e xplicitly stated that it was a gift. Although some of the checks were dated at the same time every year, a suggestion they may have been regular gifts, there is no clear evidence about how the funds were disbursed. The Trial Judge did not err on this issue.

Trial co urts hav e broad discretio n in div iding m arital esta tes. Kincaid v. Kincaid , 912 S.W.2d 140, 143 (Tenn. App. 1995), and appellate courts generally do not disturb a trial court’s division unless “the distribution lac ks proper evidentiary support or r esults from an error of law or a m isrepresenta tion of statuto ry requiremen ts and pro cedure s”. Thompson v. Thompson, 797 S .W.2d 599, 60 4 (Ten n. App . 1990) . No such error appears in the record. The evidence does not preponderate against the Trial Ju dge’s d ivision.

The Trial court ordered the husband to pay the wife $320,000.00 in cash *7 as part of the equitable d istribution. Th e parties repre sent that the C ourt subseq uently ordered the husband to pay interest on this award at 6% per annum. We do not find such orde r in the record and conc lude that intere st should be set in accord ance with the statutory rate.

T.C.A. §47-14-121 states: “interest on judgments, including decrees, shall be computed at the effective rate of 10% per annum, except as may be otherwise provided or permitted by statute . . . .” This lan guage is m andatory and not subject to reductio n for eq uitable c onside rations. Bedwe ll v. Bedwe ll, 774 S.W.2d 953 (Tenn. App. 1989). This Court has held that cash awards in divorce cases are money judgm ents sub ject to the statutory ra te. Inman v. Inman, 840 S.W.2d 927, 931 (Tenn. App. 1 992).

Next, the wife contends the Trial Court erred in not holding the husband in contempt for his non-compliance with the temporary orders issued by the Trial Judge. A ppellate cou rts “are loathe to interfere o r modify the p unishme nt imposed in contempt proceedings because such determinations lie within the sound discretion of the trial court.” Herrera v. Herrera, 944 S.W.2d 379, 393 (Tenn. App. 1996). The Trial Court determined that the husband complied with its orders and purged him of any contempt. Nothing in the record suggests this determination was an abuse of discretion.

Finally, both parties contest the award of attorney’s fees. The Trial Judge ordered the h usband to pay $10,00 0.00 of the wife’s attorne y’s fees. Attorney’s fee awards are within the sound discretion of the Trial Court and will not be disturbed on app eal unle ss the ev idence prepon derates agains t the dec ision. Kincaid v . Kincaid, 912 S.W.2d 140, 144 (Tenn. App. 1995). In this case, the evidence does not prepond erate agains t the Trial Co urt’s finding . We affirm the Trial Jud ge on this issue.

The judg ment of th e Trial Co urt is affirme d, as mod ified, and the costs are a ssessed o ne-h alf to each party.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ Hon. William H. Inman, Sr.J.