*1 hurt, pain you jury. affected the of the See Rule that sort of when verdict —and 36(b) you many your hurt. How times in life T.R.A.P. time headache? headache, you don’t feel well. You can do the just tough ¤ job, you gone but [*] If it is you go do [*] a situation which it. to work with [*] to work with a in [*] just [*] it a The court also instructed the that the instructed the guments statement that has no basis We note also that jury of counsel jury should that statements and ar are disregard any not evidence in the the trial court jury evidence. such they any ruling, re should not take action or plaintiff’s defendant While part any mark on his as intention to state making in persisted counsel the Golden suggestion a as to a make argument, Rule we do not believe the proper of the issues in the case. resolution record substantiates that assertion. Coun- presume jury must that the followed We subsequent objection sel’s remarks the instructions. “you” general use a term indicate the as judgment of the trial court is af- indicating population general. It firmed, this case is remanded to the appear to that he is does not this Court proceedings trial court for such further referring jury placing to the themselves may necessary. appeal of the rate, be Costs position plaintiff. any of the At against appellant. assessed the defendant made no motion for a mis- certainly trial and it is not clear that this
argument P.J., (W.S.), FARMER, probably TOMLIN, more than not affected J. 36(b) jury. the verdict of the Rule T.R.A.P. concur. next
Defendant asserts that the tri allowing plaintiff’s
al court erred in coun
sel, closing argument, part to read a deposition testimony
of the of the chiro
practor. The trial court overruled the de objection plaintiff’s
fendant’s counsel
reading part chiropractor’s deposi a of the closing argument. tion in its Neither BARNHILL, Sherri Lee dealing has cited a Tennessee case Defendant/Appellant, Plaintiff/Counter precise point, nor has our research However, revealed such a case. we note BARNHILL, Howell James deposition part that the constitutes Defendant/Counter testimony, closing certainly trial ar Plaintiff/Appellee. gument properly can utilize summa one testimony, tion and it should be Tennessee, Appeals Court improper question for this to done in Section, Western jury form. A must determine answer at Jackson. upon present the facts based the evidence July 1991. ed and are so instructed the trial nothing wrong judge. see with remind We Appeal Permission to Application for closing argument ing jury Supreme 1992. Denied Court Jan. witnesses, and, testimony of various if the by way deposi testimony was adduced
tion, way the easiest to make this reminder event, by reading deposition. any for a mis
the defendant made no motion
trial, nor can we find from the record that reading part of the chiro of this small
practor’s deposition probably more than not *3 Savannah, Plunk, plain-
Dennis W. for tiff/appellant. Savannah, Lackey, Lee for
W. defen- dant/appellee.
FARMER, Judge. This is a in which divorce action parties appeal court’s the trial distribution assets, and valuation of their marital award, court’s and the custodial wife appeals request for the denial of her alimo- ny attorney’s fees. August parties married were Three Wayne County, Tennessee. sons marriage: one 1979 and
were born twins in 1981. Prior to the mar- defendant, riage the James Howell Barnhill (hereinafter “Husband”), received a bach- degree physics from UT elor in math stages of During the initial Martin. several marriage, moved times Army. in the When Husband was because ultimately Memphis moved to (herein- plaintiff, Lee Barnhill Sherri “Wife”), hygiene in a dental after enrolled University program at of Tennessee. two or three While school she worked nights a dental assistant and a week as at Husband worked weekends K-Mart. during period which in- jobs this various painting job cluded a at Coca-Cola from the apartments. graduated den- Wife In January hygiene program tal 1975. school in dental at Husband enrolled Husband University of Tennessee. time, he received G.I. quit work but gradu- attending He while school. benefits began prac- 1978 and ated in December Shortly Plaintiff De- dentistry children ... ticing in March 1979. thereafter, quit Custody of pregnant and fendant have Joint said minor Wife became oldest work for several months. After the Defendant to have said began to work for Hus- during year son was born Wife children the school hygienist. band a dental Plaintiff to have said children summer months when said children are practice sold in Octo- his dental not enrolled school.... $97,500. Dr. Parris for ber 1987 to Benson did the marital Court find adamantly protested the of this sale equally.... property should be divided Allegedly, sold practice. dental practice disabling due to health did that neither Court find part a disease was attributable in most child would owe *4 sale, spondylitis. After the described as children, of said but maintenance in disability insurance Husband received solely responsible that Defendant will be $3,180 con- the amount of a month. Wife maintenance, support upkeep for the until hygienist to work a dental tinued in particularly the considera- 16, 1988 at time she started June finding of the Court that the tion the Inc., Davis-Lee, company. construction a awarded to Defendant was Sod business Prior dental the to the sale of the business than the Construc- much more valuable greenhouse opera- started a and sod to Plaintiff.... tion business awarded operation tion. October 1987 the sod Since is to not entitled receive Plaintiff [T]hat On occupation. has main been Husband’s alimony.... from Defendant 20, 1989, disability Husband’s November pay each shall their and finds that benefits were terminated. attorney’s own fees.... 9, 1988, com- Wife filed a On November judgment that the It is from this responded plaint for divorce and forth the appeal. The issues as set time of complaint. with counter At the parties are: con- parties’ marital assets the divorce the trial court I. Whether or not residence, sisted of the furniture to Husband granting in divorce erred IRA’s, items, accounts, cer- household bank rather to Wife. than Davis-Lee, vehicles, deposit, tificate court II. or not the trial Whether Inc., business, and certain real es- the sod proper- of marital erred its distribution parties sought custody of tate. Both ty- After parties’ three minor children. or the trial court ill. not Whether matter, court hearing on this failing to exclusive custo- erred in award that: found minor children dy parties’ three does that evidence The Court finds Wife. allegations in the Com- support the not court or not the trial IV. Whether Plaintiff, Lee Barn- plaint filed Sherri ali- failing to reasonable award erred Defendant, Howell hill, James that mony to Wife. Barnhill, inhuman guilty of cruel and court or the trial not V. Whether treatment.... request an denying Wife’s erred in appeared further the Court It attorney’s fees. award of countercomplaint allegations in the the trial court or not true, VI. Whether Barnhill are by James Howell filed motion failing to on Wife’s rule erred counterdefendant, Sherri and that hold evidence inadmissible in limine Barnhill, guilty of such cruel Lee taped telephone conversa- derived from or conduct toward treatment inhuman tions. Barn- counterplaintiff, Howell James is, hereby awarded court and he or the trial hill.... VII. Whether testify allowing absolute divorce.... in not erred properties of the concerning values in the best The Court determined parties. three and welfare interest okay, system nervous but or central VIII. Whether not the trial Jr., allowing Yeiser, go that I see a rheu- said needed erred Emmett spurs expert. matologist I had on testify as an because bone all vertebrae. trial court IX. Whether not the failing he to recuse himself since erred right. anything Q All Was there lawyer. is not a wrong your hands? Well, symp- that were some of the A
I. by, were come find toms that caused out, spurs among impinging the bone Divorce Grounds for ganglia coming of the ver- nerve out insuf Wife contends that there was them, on causing pressure were tebrae ficient evidence to the trial court’s tingling or which would cause a guilty of cruel determination Wife was fingers. of the arms and esthesia treatment. also insists inhuman Q right. Now, All is that what af- sup preponderance evidence your practice? dental fected ports position guilty her Husband was symptoms. A That was some of the ap and inhuman treatment. On cruel know, and, *5 had, like you I soreness ten- peal findings trial court’s factual you something, the grip If ten- donitis. accompanied by presumption a of correct hurt, joints and and the after dons would We affirm the trial court’s fac ness. will diagnosed rheumatologist, I he saw tual determinations find that the unless we having spondylitis, me as which caused preponderance of the evidence is otherwise. osteoarthritis, is a—what it which 13(d). T.R.A.P. attacking body to is the some amounts presented that Wife Husband evidence joint tissue in the and tendon of its own spent inordinate with a an amount of time areas, inflammation which causes and associate; gentleman friend and business inflammation, turn, causes in exces- gun, that threatened she Husband with spurs, growth bone sive bone him, at verbally abused furniture threw is the arthritis. and, him he overheard a conversation Now, Q right. us how that All tell gentleman and the friend between Wife your practice. affected dental they him indicating that intended to do physical Well, Hus- little you grip harm. Wife contends that A can’t instru- stuff, know, inappropriate your band con- if fin- you exhibited marital and ments and, you duct by selling dentistry practice hurting, his and sore gers are and placed great know, you mar- neck and your stress on their bend look when riage family. hardship somebody’s and undue on the mouth for a few minutes in fingers going numb and your and start quit practicing testified that he don’t tactical sense tingling, you have the dentistry because: required perform to the—without that’s Now, Q just Judge why you tell the too, got sounding you you’ve to know— quit practicing. your precise pretty control have a Well, time, know A I didn’t dentistry without fingers quality to do me, wrong specifically what was with endangering patient. going I had been several doctors and words, Now, Q right. in other All something I find out. knew there was dangerous patients for your itwas me, and, wrong finally, after a few practice the condi- to continue the you months, Memphis up going I ended you in? tion that were MRI, magnetic an what call of, Well, like my good without control (sic) imaging study done on A residence scalpels and spine forceps re- and elevators stem and lower brain cervical could, know, making stuff, you gion you of a possibilities rule out something, diseases, extracting teeth incision or neurological of fatal couple patient. very possibly injure my could process, they you out that found Q right, why you All Is that had II. sir. quit your practice? dental Distribution Marital Assets Yes, A sir. primarily witness This issue one of property the marital credibility. judge Since the trial had equitable just re- division opportunity to and de- observe manner quired T.C.A. 36-4-121. witnesses, court’s
meanor
trial
contends,
hand, that
on the other
the dis-
involving
factual determination
witness
trial
distribution was
parity
court’s
given great weight on
credibility will be
insists, however,
justified. Husband
Town Alamo
Forcum-James
appeal.
classifying
trial
erred in
some of
Co.,
(1959).
205 Tenn.
b) 32,500 $ $ 43.78 acre tract *6 30,000 c) 30,000 $ $ 18.12 acre tract 5,500 d) 5,500 $ $ lot Greenhouse Furnishings 7,072 7,072 $ $ Household Operation $136,7002 Sod Davis-Lee, 1,500 $ Inc. Retirement Accounts: Individual 14,000 a) oo $ r—I © Boatman’s Bank 4,000
b) ©oo $ Bank Citizen’s ^ vyj 2,000 c) $ ©oo Bank Citizen’s w produced by valued equally Wife. Wife between were those 1. All real estate was divided operation to be held as tenants common. as follows: sod Husband's provided only Husband’s 2. valuation for business sod and Wife’s construction business Assets BUSINESS
FARM/SOD FAIR MARKET VALUE 11,500 dumpbed $ truck 1. 1987 blue Ford 1-ton 6,000 $9,800 (2040) tractor Cost 2. John Deere 1982 5,000 (Cost $5,500) gooseneck 3. Blue trailer 500 bushhog 4. ft. #507-5 500 5. Tiller—John Deere 3,000 $5,000 behind) (walk No. 1986—W Paid 6. cutter Sod Bryar 40,000 $40,000 (3910) Bought while D and Ford tractor 7. sod cutter —No. —Cost 1989— $60,000 pending CD from divorce 1,000 $1,800 plugger 1 tractor Cost sod Pull with 8. 1982 —1987 —No. $1,400 700 (walk behind) plugger 2 9. Sod No. ASSETS_HUSBAND_WIFE Deposit 30,0003 $
Certificate Personal Automobiles/Vehicles: $ 12,000 12,000 (Trust children) $
Cash 1,299.41 $ Life Insurance DEBTS:
Payment 30,000 on Joint <$ CD > 18,000 18,000 <$ Debt on real estate <$ > > $286,971.41 $210,472 TOTAL: Har- 36-4-121(a) provides jointly-owned property. T.C.A. Harrington, rington equitably should 798 S.W.2d that marital Fisher, Fisher v. (Tenn.Ct.App.1990); regard eq to fault. An divided without division, however, (Tenn.1983). Accordingly, necessarily uitable is not given equal one. Trial are afforded the trial court’s distribution will be courts Ed- Edwards v. appeal, dividing great weight on wide discretion the interest BUSINESS Assets FARM/SOD FAIR *7 MARKET VALUE implement $ 250 10. Box blade—tractor farm—paid 400 $700 11. Roller— type 250 $250 Roller—small 12. —cost 1,500 Plant setter 13. 175 Chain saw No. 1 14. (newer) 175 No. 2 15. Chain saw tools, saws, jigsaws, 750 Hand circular etc. 16. 400 Table radial arm 17. saw paid 250 400 $250 18. Section harrow — 19. Flail sod mower— paid used $750 3,000 3,000 $5,000 (Jackenbean) paid mower 20. Reel sod — bought summer 21. New sod 1989 mower— (sod Scoop slip) paid $150 100 22. — paid $150 100 One-row 23. cultivator — 25,000 $25,000 during Teldyne paid piggy divorce back fork Princeton 24. 20-M lift— 18,500 $7,500 (1978) paid plus bed customized bed 25. Truck-International w/customized during divorce 100 (1978) paid $600 trailer 26. Red — 300 Troy-Bilt $600 tiller —cost 27. 200 Sod-rotary $500 28. cutter — (on wheels) paid $500 200 Leaf blower 29. — 50 gas 30. Leaf blower— 400 gun 31. Nail 13.000 Traveling gun irrigation equipment 32. $136,700 _ TOTAL VALUE ($30,- Therefore, $60,000 portion CD his of this joint tion. 000) CD for 3. The had a operation valuation. opera- in the sod is included and invested in the sod Husband cashed 450
wards, finding (Tenn.Ct.App. 288 consideration of the of the Court S.W.2d 1973), presumed to be correct and will that the Sod business awarded Defen- preponderance unless we find the much than the dant was more valuable evidence is otherwise. v. Lan- Lancaster business awarded to Plain- Construction caster, (Tenn.Ct.App. primary tiff. ...” Husband is the Since 1984). 36-4-121(c) sets forth T.C.A. physical § and retains of caretaker guide which are intended to factors court making equitable an distribution: equip- him all of the sod farm awarded appropri- We
(c) making ment. think this division was equitable division of ate. property, marital the court shall consider including: relevant factors all Both are well educated. Hus- (1) marriage; The duration of has to retire from his band been forced (2) age, physical and mental The practice light of continuous dental his health, skills, employability, vocational problems The health and difficulties. estate, earning capacity, financial liabili- present that Husband’s record reflects needs each of the ties and financial potential is modest. Husband no income parties; longer disability insurance and his receives (3) tangible intangible The or contribu- he income tax return reflected that (1) education, party tion one to the $19,135.78 opera- from sod only made training, earning power of or increased estimated his 1989 in- tion. Husband party; the other only operation from his sod would be come (4) ability party relative of each better, $30,- $25,000 to somewhat between acquisitions capital
for future assets $1,760.55 in only While Wife netted 000. income; Davis-Lee, 1988 from her Inc. construction (5) party contribution of each to business, capable she testified that she was apprecia- acquisition, preservation, $21,000 $22,000 earning as between sepa- or dissipation tion or of the marital Therefore, light hygienist. dental including property, rate the contribution current health status Husband's marriage party to the as homemak- capabilities basically earning ties’ earner, er, wage parent; or reviewing pertinent After equivalent. (6) separate property The value 36-4-121(c) they per- T.C.A. factors party; each case, agree to the facts this we tain (7) party each The estate of at equitable division is the trial court that an marriage; time of Nevertheless, Wife’s equal one. since (8) provide pay economic circumstances wherewithal to child best, division of each at the time the feel the is limited at we time effective; to become property is to Hus- additional distribution trial court’s *8 justification The for (9) par- each band was consequences tax warranted. award would part of the court’s ty; and trial joint obligation to parties’ equal and be the (10) other factors as are neces- Such 36-5-102 children. T.C.A. support the equities § sary to between the consider the such a distribution: specifically authorizes parties. spouse’s decreed to Portion of estate specifically the found court alimony sup- spouse or entitled to “should be property in this case marital case, may de- port. the court such Nevertheless, the court —In equally.” divided is to such spouse entitled cree the who unequal distribution. proceeded part such alimony support child or in the apparent disparity distribution personal spouse’s and estate real finding the court’s attributable so, doing In proper. may it think as support child party would owe “neither look to the have reference and may of said minor other for maintenance by spouse received either property which children, solely be but that Defendant will marriage, or the time of maintenance, the other at upkeep for responsible separate children, afterwards, as to the as well particularly support of
451
inheritance, and
by marriage
purchased with Husband’s
property secured to either
$75,000 as an
lastly,
contract or otherwise.
that Husband received
appropriate amount
inheritance and an
upon the
This
award is “based
additional
separate property.
classified as
should be
support
placing
primary
burden of
[the]
upon the
...
of the children
[I]n
father[.]
state,
property
is a dual
Tennessee
any
proceedings
future
between the
sepa
marital and
distinguishing between
support,
child
the division
in reference to
36-4-121(a) only
property.
rate
T.C.A. §
proper
property in said decree will be a
proper
of marital
provides for the division
matter for consideration.” Edwards v. Ed-
Batson,
849,
ty.
v.
769 S.W.2d
See Batson
283,
wards,
(Tenn.Ct.App.
501 S.W.2d
292
(Tenn.Ct.App.1988). T.C.A.
36-4-
1973).
121(b)(2)
as:
separate property
defines
$24,000 of the
The trial court found
personal property owned
all real and
deposit
parties’
property
marital
should be
marriage; property ac
spouse
before
ed “in trust for the use and benefit of the
exchange
property acquired
quired in
for
dis
parties three minor
to be
marriage;
from and
income
before
college
higher edu-
for their
or
bursed
by a
appreciation
property
owned
cation_
any
chil-
In the event
of said
marriage except when
spouse before
college, or
dren shall not elect to attend
property
as marital
under
characterized
education,
higher
then the
obtain
(b)(1);
acquired
property
subdivision
pay
attending
child not
col-
shall
to such
bequest,
by spouse
any
by gift,
time
lege
receiving higher
or
education his share
or descent.
devise
(sic)
of these funds on this
25th birth-
36-
property
Marital
is defined T.C.A. §
day. ...” Wife insists this award was
121(b)(1)as:
4—
proper and these funds should have been
personal property, both
all real and
equally
parties.
distributed
between
intangible, acquired by ei-
tangible and
opinion,
support
As noted in this
child
spouses during the course of
ther or both
adequately
children has been
the final
marriage up
to the date of
provided. This is not
case
where
hearing
either or
divorce
owned
obligor spouse has substantial income and
filing
of a
spouses
both
as of the date
up
part
parents’
as
a trust
set
divorce, except in the case
complaint for
support obligation.
child
1240-2-
See §
anticipation
conveyance
of fraudulent
4.04(2)(a)
Support
of the Child
Guidelines.
filing,
including any property to
obligates
Essentially,
this award
right
acquired up to the
which a
pay
support beyond
ties to
child
the chil-
Tennessee,
hearing, and
age majority.
the final divorce
dren’s
date of
duty
reasonably
parental
a child terminates
as of a date as near
valued
date;
majority
hearing
the child reaches
and a trial
when
final divorce
possible to the
it
authority
from,
court is without
to extend
be-
any
increase
including income
Parker,
yond
time.4 Parker v.
marriage,
value
(Tenn.1973);
Whitt
property in
separate
determined
(Tenn.1973).
Whitt,
490 S.W.2d
(b)(2)if each
accordance with subdivision
Therefore, the trial court’s decree should
substantially
to its
contributed
equal
reflect
be modified to
distribution
appreciation and the
preservation and
parties.
pension, retirement
value of vested
*9
fringe
rights accrued dur-
other
benefit
argues that
the trial court
Husband
marriage. As used
ing
period of the
the
classifying
separate
of his
erred in
some
definition,
contribu-
in this
“substantial
Specifically,
property as marital.
Husband
to,
include,
limited
may
but not be
tion”
greenhouse property val-
contends that the
of a
or indirect contribution
the direct
$11,000
given
to him
his
ued
was
at
earner,
homemaker,
wage
spouse as
father,
tract of land was
that the 18 acre
beyond
extend, however,
duty may
ma-
incapacitated
extend
period
until the
4. This
does
422,
school,
Tenn.App.
jority.
Sayne
Sayne,
high
39
graduates
T.C.A. 34-
See
§
child
from
(1955).
1-101,
mentally
physically or
exit,
family
manager, togeth-
citing
at
2 H.
The
or
financial
Law Domestic Relations in the United
with such
factors as the court
er
16.2,
(1987).
States,
having jurisdiction
may
thereof
deter-
Property
mari-
mine.
shall be considered
acquired
This 18 acre tract of land was
property
tal
as
this
defined
subsection
in
registered
on
December
dividing
sole purpose
for the
assets
By
Husband and Wife.
names of both
pur-
upon divorce and for no other
joint tenancy,
in
there
assuming title
exists
pose. ...
presumption
a
the Husband
rebuttable
gift
made
to the
estate.
a
marital
Id.
Husband testified that he netted between
intent
in the
There
no
evident
record
was
$20,000
$14,000 and
from his father’s es-
property
that
intended that this
Husband
$60,000
forgave
a
out-
tate after
estate
$14,000 $20,-
As
to
separate.
remain
to the
Therefore,
standing loan.
Husband con-
proceeds actually
as inheri-
distributed
$75,-
he
approximately
that
inherited
tends
death,
there is no
upon
tance
father’s
$75,000
argues
000. Husband
kept sepa-
these funds were
evidence that
marital
should
been
parties’
estate
have
rate
even where the funds are
this
or
property
Hus-
separate
considered
there
Clearly
time.
has been transmuta-
band.
tion
funds.
of these
father
disagree.
We must
Husband’s
green-
also
gifted $60,000 to the defen-
loaned and/or
Again,
gift
him.
property
house
was
plaintiff
pur-
and/or
dant
defendant
joint tenancy
property
to this
is in
title
the 18
tract of land mentioned
chase
acre
In the
of Husband and Wife.
absence
Upon his father’s death the
hereinabove.
proof
gift
for this
intended
forgiven
part of
loan was
as
Husband’s
this
separate,
prop-
we find that
remain
money
inheritance. Whether
was
erty
property.
also is marital
a gift,
or
viewed as
inheritance
clearly
proper-
therefrom
marital
funds
are
III.
may
Separate property
at this time.
ty
Custody
Child
has
property
marital
when there
become
separateness.
a transmutation of
been
Wife contend
Both Husband and
clearly
doctrine of transmutation was
awarded sole
should have been
Batson,
Lance
the minister
291. Wife also
501 S.W.2d at
Linam,
Christ,
primary
a former
care
and Ms.
not be the
Church
Husband should
parties,
prior to
minor children because
testified that
friend
both
taker
the children’s
filing
complaint
philosophy
Husband had
towards
Husband admit
majority of the time. Both
activities.
children the
extracurricular
he had
Hus-
cross-examination
were of the
ted
witnesses
that work should be
philosophy
Linam
parent. Ms.
band was the better
*11
predominant
day
in the children’s lives or
tion
the
from the
factor
children
school
priority
take
over their
ac-
beginning
extracurricular
lets out at the
of Christmas va-
tivities.
morning
cation to the
of December 26. At
should
that
time Father
have visitation
Normally, joint custody
is not
the best
rights
through
from
December
the bal-
interest of the children. See Dodd v.
ance of the Christmas vacation.
Dodd,
(Tenn.Ct.App.1987).
until We do feel a factor the we feel in the interest to would be children’s best properly considered. every deprive Father weekend whole Further, during year. the school we have IV. in the it would be best
determined of the children alter vacation interest Alimony pro- by the trial court to schedule ordered appeals the trial court’s deni hav- should alternate vide that alleges request alimony. Wife al of her for ing spring school break the children alimony under the that she entitled vacations. Thanksgiving and Christmas 36-5-101(d) in T.C.A. factors set forth regard, beginning in Mother In that provides: rights have should visitation general as- (d) intent of the During It Christ- Thanksgiving weekend. economically who is sembly spouse that a Mother should visita- mastime *12 marriage monetary and disadvantaged the other butions to the relative to contributions, possi- tangible spouse be rehabilitated whenever homemaker and granting pay- party intangible of an order for contributions ble and rehabilitative, temporary sup- education, training ment of or increased to the port and there is earning power party; maintenance. Where the other disadvantage such relative economic and (10) in fault of the The relative in rehabilitation is not feasible considera- court, discretion, in its cases where factors, including tion of all relevant so; appropriate deems it to do and subsection, those set out then the (11) factors, including Such may grant payment order for consequences party, to each as are tax support long-term on a and maintenance necessary equities to consider the be- remarriage or until the death or basis parties. tween the recipient except provid- as otherwise (a)(3). determining ed subdivision obligee spouse and the Need of the obli- granting whether the of an order for gor’s spouse’s ability pay to are the two payment and maintenance to a determining important most factors in determining party appropriate, and if appropriate alimony, any. amount of nature, term, amount, length and Campanali Campanali, 695 S.W.2d payment, manner of the court shall con- Hall, 772 (Tenn.Ct.App.1985); Hall v. factors, including: sider all relevant (Tenn.Ct.App.1989). (1) earning capacity, The relative obli- parties enjoyed that the Wife needs, gations, and resources of financial high living during relatively standard party, including pen- each income from marriage. the course of the Wife insists sion, profit sharing plans or retirement professional earning that since Husband’s sources; and all other higher capacity substantially as a dentist is (2) training The relative education and hygienist, than hers as a then Husband party, ability opportunity of each and required pay to a reasonable should be party of each to secure such education parties’ financial alimony. amount of The training, necessity party and the of a profit net records indicate Husband’s training to secure further education and $32,775.25 dentistry practice from his was improve earning capacity his or her $39,677.31 1986, $49,- for for level; a reasonable 184.54 for while Wife’s income as $21,000.
(3) marriage; hygienist approximately The duration of the monthly her needs are Wife contends (4) age, physical mental $4,000 per testified month while Husband party; condition of each living expenses monthly were (5) The extent to which it would be $1,500. Additionally, contends she is Wife employ- for a undesirable seek alimony with- entitled to because Husband ment outside the home because he or she checking ac- parties’ from the drew funds will be custodian of a minor child of counts, her credit joint CD and cancelled marriage; cards. (6) party, separate assets of each took into consid- The marital distribution personal, tangible and in- both real and that Husband withdrew eration the funds tangible; operation. in his sod Wife and invested (7) provisions regard made with appropriate her share. was distributed 36- the marital as defined punish would like us 4-121; ignores she the fact his faults while (8) living The standard of de- responsible for the ultimate she was marriage; during the ties established Additionally, as we marriage. mise of the earning present ca- (9) party has have noted The extent to which each equal. Wife approximately tangible intangible pacities contri- made such prosecute defend compel Husband to return needs and to would us suit. practice despite his dentistry Husband’s present provide state of health order Although we are *13 $4,000 support. her with additional Wife’s “policy” unsupported is judge’s trial the expenses her includes monthly estimate of 5—101(i), legislative intent T.C.A. § 36— pri- the expenses which are attributable to this policy we do feel that affected the mary the children. caretaker of minor If result. the final decree awards Wife responsibility, this Wife will not have Since funds out of which her needs and sufficient expenses significantly re- these shall be met, reasonably can be then counsel fees Furthermore, since is the duced. inappropri attorney’s award of is an fees primary caretaker of the Franklin, v. 746 S.W.2d ate. Franklin children, sta- employment then his current (Tenn.Ct.App.1987); Ingram 715 v. In In tus is more beneficial to the children. (Tenn.Ct.App.1986); 721 262 gram, S.W.2d present earning capacity, light of Wife’s (Tenn. Duncan, 686 568 Duncan v. S.W.2d education, in this the division and Ct.App.1984). attorney’s The award of alimony case we expenses largely in legal fees and the inappropriate. judge, award would be discretion of the trial and trial determination will not be disturbed
court’s preponderates unless we find the evidence V. Luna, contrary. toward Luna (Tenn.Ct.App.1986); See Attorney’s Fees 13(d). T.R.A.P. trial Wife contends noted, significant As Wife was awarded failing erred in to her attor court award final decree of divorce. assets its ney’s fees that the court based $20,- liquid alone assets consists Wife’s person upon policy that each decision “a accounts, $30,- retirement individual attorney own fees.” pay their Wife required pay 000 that Husband “policy” stated contra that the trial court’s proceeds he used to out which CD 36-5-101(i), gives tri venes T.C.A. $12,0005 cash. buy equipment, farm at statutory authority to award al courts afforded sufficient funds We feel Wife was torney’s Specifically, fees in divorce cases. counsel fees out of which her needs and 5—101(i)provides: T.C.A. § 36— met. reasonably can be discretion, (i) may, its court argues that she is entitled to Wife also suit, pending upon motion any time contempt attorney’s subsequent fees any hearing, make and after notice and has proceedings she instituted follow- compel a may proper order have noted ing the divorce action. As we necessary for spouse pay any sums discretionary matter and largely this is maintenance of the other abused do not that the trial court we feel spouse to spouse and to enable such this discretion. pro- and to prosecute or defend suit support of the for the vide VI. minor children suit, and other pendency of the to make Recordings Tape Spousal appropriate. orders it deems job expenses of support may intercepting include secretly making any training be recording telephone and education. conversations subsection, family under this on order Wife and other tween each filed a telephone financial needs of Prior trial Wife consider the line. shall prevent limine financial and the written motion spouse trial court being played. The tapes from those ability spouse to meet each opinion. As modified this 5. you object? Do still THE COURT: the motion under advisement and
took proceedings continued without do, divorce It would be hard MR. PLUNK: denying motion. The granting or Wife’s way he started yes, sir. I think the days four until proceedings commenced for lay— answering, he needs to judge finally ruled on Wife’s mo- the trial Well, rephrase let me MR. TATUM: tapes judge The trial ruled that tion. my question. Wife contends that were inadmissible. Now, Tatum) Q (By Mr. don’t state ruling preju- too late to eliminate the came said, lady just state what what this argument dicial effect. We find Wife’s making respect to wife said with your al- tapes merit. The were never without *14 jealous. just your This is these two men Any error that was lowed into evidence. wife, say Don’t what the other now. delay ruling in judge’s the trial caused said. woman in limine harmless er- on this motion was don’t A She said that —I know ror. I’d have to listen to the exact words. objectionable testi- Wife also she had told tape again, but she said that concerning mony was allowed into evidence got Mitchell that she’d sat down tape. the contents of the Third call, was, just guess who it phone testify were allowed to about what Wife gotten him that she had she had told tapes. in find had said these We Wife’s Wheeler, phone Randy from and she call fact, argument merit. In Wife’s without she—it’s hard to tell this with- said that elicited, initially during re-direct ex- counsel telling the other side of the conversa- out Hime, the con- amination of Robbie Davis thought said that Mitchell had tion. She place tapes. took on the versations through having that he to deal with was only objectionable testimony Wife The anymore, that one that was down town appeal regard has raised on with to these jealousy, for him part, and this the little tape recordings is counsel when Husband's know, that, you that he still to find out Husband, asked Randy had to contend with Wheeler. Q right. you any All Did hear discus- ad- testimony properly this was Whether lady your
sion between wife and another there is mitted need not be decided because concerning your making Mr. Wheel- wife to con- in the record sufficient evidence jealous? and Mr. Johnson er guilty of cruel and that Wife was clude foregoing inhuman treatment without Yes, Davis, Joy A who’s now sir. statements. goes Joy divorced and under the name Reed, who— VII. to, object I I MR. PLUNK: want to into, guess getting this is what we’re Property Valuation Owner's testify people these that are about that the trial court contends Husband going hearsay. against, it’s to be testify refusing allow him to erred MR. TATUM: Well— regarding his of the value objec- And we raise our As have men- property. MR. PLUNK: we parties’ real because, tion, anything tioned, all real again, on court distributed the trial that’s— heard the obviously, equally Mr.—I haven’t property in this case heard the we have Mr. Tatum has in common. Since tapes, but as tenants ties distribution, asking ques- issue is apparently tapes, and he’s in this concurred heard off of stuff that he’s tions of the moot. his the client and tapes,
these and about made these statements third VIII. the Court. outside Testimony Expert Honor, just I Your TATUM: MR. the trial court contends his him what wife going to ask about Jr., Yeiser, allowing Emmett lady erred said, other said. what this not light testify expert language as an limited of the trial court’s decree custody may be in the ma- awarding found Yeiser, qualifications. called Emmett short, pro- jority opinion. the decree Jr., testify as to the fair market value of custody is to vides that Father have estate in real this cause. during school Moth- year, children Again, light of the marital distribution of during er is to have them the summer real this issue is estate moot. they are enrolled in months when Nonetheless, provides school. order during year school Mother is to IX. “custody” every week- children Friday Sunday end from afternoon to eve- Non-lawyer Judge every ning, except Sunday when pro in this judge divorce Father have the is to children. ceeding lawyer. con was not a specifies order further that Father non-lawyer allowing judge tends that custody” the children “primary to have decide the of the children and However, school week. insofar property rights decide in a divorce case is a school, “participation in as the children’s *15 rights of the of the denial constitutional extracurricular church and other activities parties under the Fourteenth Amendment programs,” ... such as Scouts and athletic supervision custody as a of due Mother and of the U.S. Constitution denial is of the children. process equal protection and of the laws.
Additionally, contends it is a deni Husband opinion, potential In this writer’s the rights joint parents of their under Article 8 al Section the custodial conflict between only inure is substantial. This conflict will the of Tennessee Constitution. of the While to the detriment children. it error for the trial contends that Dodd, through acknowledging that Dodd v. judge not to recuse himself on the basis (Tenn.App.1987) Court 737 286 this S.W.2d lawyer. that he was not a Husband has spoken strongly against joint custody, has ap this the first time on raised issue for I fear the facts this case the that under of There peal. is no evidence give recognition failed to full majority has the objected made a motion or trial court There- depth of the of the thrust of Dodd. Therefore, this issue waived. See level. in this stated: Court Campbell County Board v. Education of Notwithstanding joint the cus- fact that Inc., Brownlee-Kesterson, 457 S.W.2d by tody permitted children is of minor (Tenn.App.1984). statute, necessary to have found it we decrees large number of such reverse judgment The of the trial court is af- years. expe- during past the several pro- firmed as modified and remanded for joint has rience of this Court been opinion. ceedings consistent with ever, rarely, if custody works—for appeal appel- of this taxed to costs are one resi- There needs to be children. may for which issue if neces- lant execution life, dence, in all storms of one haven sary. whipped up including those storms to be There needs winds of divorce. and re- parent primary one control TOMLIN, P.J., (W.S.), part. dissents upbringing of the sponsibility for the children, possible. parties’ whenever CRAWFORD, J., concurs. reality, responsibility Custody, in means care, of development for the nurture and TOMLIN, Presiding Judge, Western mental, needs physical emotional and Section, dissenting. parent should of the child. The custodial respectfully portion from I dissent expect cooperation and as- receive opinion affirming majority the trial parent in sistance from the non-custodial awarding parties joint court’s action in every respect to serve the best interests custody child or children. their two children. their divorces, grew responsibility
In older shifted more feelings when contested usually heated and run majority emotions more to Father. high, appear to this minister, it would Court parties’ along notes also that the joint custody would not serve the best parties, friend of both testi- with former child. Even interests of the when opinions respective fied that in their Father suggest of the case circumstances would significant It is parent. was the better joint custody, for it to be successful opinion observed majority note that require coopera- would a harmonious and “[wjife’s testified that mother Hus- relationship parents. tive between both good band was a father and that when she Id. at 289-90. call or come home would routinely
Under the terms of the trial or- Husband be the one there court’s would der, “primary during custody” Father has taking care the children.” five-day approximately school week for matters, child-custody the welfare of months, passes nine the baton to Moth- but polestar. the children involved is the As Furthermore, every er order weekend. Bah, Judge Conner said Bah provides “super- that Mother will have the (Tenn.App.1983), “[i]t custody” vision in- children’s only Not alpha omega.” the ... does volvement in extra-curricular activities custody regarding the decree as fashioned school, church, athletics, and Scouts against by the trial the welfare court work the school week. preponder- but the evidence If no conflicts there were between custody against finding joint ates previously, now have been actually preponderates favor in by built of the trial virtue court's decree. *16 Accordingly, Father. I would award undoubtedly This relief was fashioned as custody and complete absolute and control testimony result of of the to the of the Father. I otherwise con- children to effect that Father believed the work majority opinion. cur the balance of predominance ethic should take over opposed to children’s lives as their involve-
ment in extra-curricular activities. Joint
custody mutuality of calls for decision-mak-
ing regarding the children. Crites; majority opinion Shirley seeks soften the R. D. Donald CRITES degree by some joint blow of Lynn Paul E. and Claudia Williams rights tempering the visitation Williams, Randy Meadors Deborah ties, allowing particularly in Father visita- Meadors, Plaintiffs-Appellants, every tion rather other weekend than let- ting every visitation Mother have weekend. SMITH, capacity E. in his official Charles this, Notwithstanding Father and Mother the Tennessee as Commissioner still are faced with the built-in conflict to Education, Department State already alluded in un- we have Burson, his official ca Charles W. majority opinion der the Mother will Attorney Report pacity as General custody” chil- “supervision Tennessee, Defen er of the State involving dren’s activities extra-curricular dants-Appellees. school, church, athletics, and Scouts week. school Tennessee, Appeals of Court of Section, at Nashville. Middle opinion, majority As noted clearly record establishes that in this case Sept. 1991. Father has been and should considered Appeal Application for Permission parent of the children. The ma- better by Supreme Court Feb. 1992. Denied jority opinion notes without contradiction although Father and Mother shared raising the children responsibilities younger, when the children were