# FILED
October 29, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk JAN MILTON HAUSMANN, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9702- CH-00092 ) ) Maury Chancery NINA LOUISE STANFORD ) No. 93-381 HAUSMANN, ) ) Defendant/Appellee. )



### COURT OF APPEALS OF TEN NESSEE MIDDLE SECT ION AT NASHVIL LE
APPEALE D FRO M THE C HANC ERY C OURT O F MAU RY C OUNTY AT COLUMBIA, TEN NESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

EDWARD J. GROSS Suite 1601, Parkway Towers Nashvil le, Tennessee 37219 Attorney for Plaintiff/Appellant J. RUSSELL PAR KES 102 West 7th Street P. O. Box 692 Columbia, Tennessee 38402-0692 Attorney for Defendant/Appellee

AFFIR MED I N PART ; MOD IFIEDIN PART;

AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J.


## O P I N I O N- 2 - The tri al c ourt

grante d thewi fe a divorce after a marriage of twenty- eight years, and divided the marital pr operty, i ncluding themarital home, bet ween the parties. In addition, t he husband was ordered to pay the w ife $5,000 per month as alimony in futuro, and her

attorney fees of $9,645.80. We modify the divis ion of the marital property to grant the wife an undivided interest i n t h e m a r i t a l h o m e . We also reduce the alimony award to $2, 5 00 permonth. In all other respects , we affirm the trial cour t.
I. Marriage and Divorce

Jan Milton Hau smann and NinaLouise Stanford mar ried in 1967, when he was working on h is masters deg ree in phys iology , and she was a nur sing school student. Mrs. Hau smann obtained her R .N. degree about three months after the marriage. Her husband obtained his ma sters degree, and began medical scho ol in 1968.
During Dr. Hausmann’ s medical training, his wife worked to support the fam ily. She continued to be the primary wage earner until the parties’ youngest child was born in 1972. Thereaft er, with her husband’s encouragement, Mrs. Hausmann stayed ho me to ra ise the parties’ three children, while he acted as the family’s breadwinner.

In 1976, the partie s settled in Columbia, w her e Mrs. Haus man had grown up, and where her parentsstill l ived. Dr . Hausman joined a Columbia int ernal medicine practice w ith three other physicians. The wife’s parents gave her a fifty acre tract of land that adjoi ned their ow n property . The parties built a six-bedroom, fourand-a-half bath hous e on the land.- 3 - Dr. Hausman di scovered t hat medical pract ice wasnot as lucrative as he had hoped, and by his own testimony , he often found it difficult to pay hi s professional and personal bi lls. Addit ionally, the long hour s req uired by a general practice prevented hi m from participati ng in his childr en’s upbring ing to the deg ree that he wis hed.

At so me p oint , therel atio nshi p betwee n Dr . Ha usma n and hiswi fe began to deteriorat e. Dr. Haus man da tes their proble ms to the partie s’ thirteent h wedding anniversary in 1980. On that date, Dr. Hausman was out with his son, and returned home one hour late for a planned celebr ation in Nashvil le. His w ife was furious, refused to go out wi th him, and w ent to bed.

Communication continued to worsen between Dr. Hausmann a nd his wife, and in 1985, d uring a time that hechara cteri zes a s a per iod of c risi s, he b ecame infatuated with the wife of the minister atthe parties’ church, and recorde d his fe elings in a calendar

that he used as a jour nal. Mrs. Hausmann read the calendar and became jealous, leadin g to many arguments.

In one incide nt, the Hausmanns w ere lyi ng in bed, di scussing the situation, and Mrs. Haus mann became so angr y that she started kick ing her husband. He jump ed ou t of bed and grabb ed her ankles, pulling her onto the f loor. He immediately apologiz ed, but the d a mage was al ready done. Mrs. Hausmann was subsequently diagnosed w ith a compression fracture of the thoracic spine. In 1986, Dr. Hausman s uffered a nervous br eakdown, re quiring counseling and medication.
By 1988 or 1989, Dr. Hausman’s practice in Columbia had matured, but it was still not producing the income required by his family, and he w as workin g parttime in the emergency room in order to make ends meet. He decided, with his wife’s- 4 -

con currence, that he should make a change. In 19 91, he purchased a medical practice for $25 0,000 from a retir ing Nashv ille physician.

It appeared at first that St. Thomas Hos pital was willi ng to guar

antee the loan Dr. Hausmann needed to complete t he purcha se, m akin g colla tera l unn eces sary. But St. Thomas ultimat ely dec lined, so the ho use and land in C olumbia had to be pledged as collater

al to secure the l oan. Dr. Hau smann found his new p ractice to be less stressful than the old one , even though he had to comm ute from his home in Columbia to Nas hville four days a week.

Howeve r the change in practice di d not repair the r elationship bet

ween th e parties. In 1992, Mrs. Hausmann ha d an argument with her son, who was a medical student at the ti me. The upshot of the argument was that the son would no lo nger be receivi ng financial h elp from his mother , as she wanted to preserv e her inheritance, a nd that Dr. Hausmann would hencef orth have to pay all the son’s expenses. Dr . Hausman n established an account in Na shvill e for that purpose. When Mrs. Hausmann found out about the account, she called her husb and deceitful, because he had opened th e account in hi s own name w ithout telli ng her about i t.

Dr. Hausmann testified that his wi fe was subjec

t to repeated epi sodes of irrational behavior, furious outburst s in whi ch she insult ed and belittled him. Mrs. Hausmann admitted that she often acted unreasonably out of anger, and that it took her a long time to get ove r her feelings. But she testifie d that she eve ntually di d get over them, and she fault ed her hu sband f or faili ng to let go of his resentment over her behavior.

Dr. Hausmann l eft the marital home i n December of 1992, foll owing an incidentin which his wife refused to go out on a plann ed dinner and movie date with him when he ret urne d from work l ater than the par ties antici pated. Dr. H ausman- 5 -

moved to Nashvi lle, wher e he rented a smal l apartment, and he voluntari ly star ted paying hi s wife $4,325 pe r month to cover her exp enses.

Dr. Hausmann had afirst cousin in Texas, Ann M cEnroe, wh om he had bee n very

clos e to when they

were g rowing up. At some point , he began communicating with he r by tel eph one , and fou nd he r to ha ve a sympathetic ear. Mrs. McEnroe’s husband grew suspicious because of th e frequent and lengthy phone ca lls, and because Dr. Hausmann sent he r gifts of flowers. Apparently, Mr . McEn roe tapped the phone at o ne point , but at t ria l heinvoked hispri vi leg e ag ainst se lfincriminati on, and declined to testify about the phone tap. In any case , he telephoned Mrs. Hausmann to tell her of his suspicion s.

In May of 1993, D r. H ausm ann travell ed to San Antonio, o stensibly to see his father and stepm other, but at least in part to see Mrs. McEnroe. Though the parties had separated by then, Mrs. Hausmann wasstil l getting call s at ho me from her husband’s patients, and D r. Hausmann felt h e h ad to let her k now his w hereabouts so she could res pond to questions from them. He therefore told her about his upcoming trip. Unbeknownst to him, she also trave lled to Te xas, a ccom pan ied b y two private investigators.

Theyfollowed Dr . Hausman n and M rs. McEnr oe from Friday

night to Sunday afternoon, when the two drove from San Antonio to Kerr ville an d back. They observed the two cou sins stoppingat roadside par ks to pick flowers and embr ace, and pulling i nto a cul-de- sac near Dr . Hausmann’s fath er ’s house, so they could embrace and kiss. At trial, Dr. Hausmann admi tted embracing and kissinghis cousin, but denied that they had en gaged in sexual acts.- 6 - On July 12 , 1993, D r. Hausmann filed for a divorce on the ground of irreconcilable differen ces. On August 27, 1993, his wife answered, and cou nterclaim ed f or divo rce, on th e grou nd of adul tery.

After consideringall th e evidence, the trial court concluded: “[i]t appeared to the court t hat the Defendant (si c), Dr. J an Milton Hausman , has been guilty of adultery, and the Defendant, Ni na Louise Stanford H ausmann, is entitled to an absolute div

orce from the Plai ntiff.” Dr. H ausmann subsequentl y appealed.

II. A bsolute Di vorce

The appellantargues that although Dr . Hausmann may h ave been guilty of bad judgment i n visiti ng Mrs. McEnroe so soon after the parties’ sep aration, there was no proofthat he had committed adultery. It is tru e that there is no direct evidence of adulterous act s in the record, but t here is uncontr overted pr

oof from which a

trier of fact might reason ably infer t hat such acts had been committed. Adul tery may be established by circumstantial evidence, a nd need not be proven beyond a reasonable doubt. Sutton v. Sutton , 3 Tenn. App. 333 (192 6); Trou t v. Trout , 250 S.W.2d 372, 35 Tenn. App. 617 (1952) ; Gilliam v. Gilli am , 776 S.W .2d 81 (1988).

We must state at the outs et that we do not find any significant evidence in the record to indicate an adulte rous relationship between Dr. Hausm ann and th e minister’s wife. The only evidence conceivably

sufficient to s upport t he trial court’s finding involves Dr . Hausmann’s co usin.

The evidence i ncludes Dr. Hausman n’s ad mi ssio n tha t he s pen t two nightsin the same house with Mrs. McEnroe, a photograph of Dr. Hausm ann and his cousin with their arms around each other, and his admission that he kissed her on the lips. He also admitted that hehad discussed with Mrs. McEnroe the propriety of first- 7 -

cousins marrying . Balanced ag ainst that ev idence is Dr . Hausmann’s deni al that he had any romanti c interest or feelings for Ann McEnroe.

A finding of fact by the trial court in a civil act ion is acco mpanied on appeal by a presu mption of the corre ctness of that finding. An appeals court may not set such a finding aside unless the ev idence preponderates otherw ise. Tenn. R. App. P. 13(d). The trial co urt is enti tled to this p resumption, becaus e as the trier of fact, the trial judge obser

ves the witness es on the stand, and is thus in a better positi on than is the appeals cour

t to assess th eir credib ility. Ha rwel l v. Harwell, 612 S.W.2d 182 (Tenn. App. 1980).

Afterth oroughly reviewing this record, we do not believe that it conclusivelyproves that the appellant has bee n guilty of adultery. But neit her c an we say that t he eviden ce prepo nderat es agains t the tria l court’s f inding.

Adulteryhas, of course, l ong been recog nized as a g round for divorce. See Tenn. C od e Ann . § 36 -4-1 01. T he f act t hat t he al leged adul tery m ay have occurred after the parties separ ated does not prevent the trial court from gr anting one party a divorc e on t he ba sis of the o ther part y’s ad ulte ry. Clark v. Clark , 644 S.W.2d 681 (Tenn. App. 1981); Perry v. Perry, 765 S.W.2d 776 (Tenn. App. 1988). We do not find any err

or in the cour

t’s decisi on to grant

the wife an abs olute divor ce on the basis of the husband’ s adultery
.

III. The M arital Home

The issues of the disposi tion of th e marital home and the award of alimony are closely intertwined in this c ase. Tothe degree that the alimony award was based upon the appellee’ s need, a prime consi deration in establishing that need- 8 -

appears to have been th e cost of her continued occupat ion of the 6,000 square foot h ome that the parti es shared duri ng their mar riage. N onetheless, for thesak e o f clarity , we w ill disc uss the two issues separ ately.

As mentioned earlier, the partie s’ marital home was built on a fifty acre tract that was g iven t o Mrs. Hausmann by her parents. An inheritan ce from Mrs. Hau sman’s aunt enabled her to build a porc h and entranceway onto the home. Another inheritanc e from an uncle, and furt her financial g ifts from her parent s underwroteadditional i mprovements to the home and its furni shings.

The trial cour

t granted the appellee the use and occupan cy of the mari tal home, but ordered that if she remarri ed, the house would be sold, and the appel lant would be entitled tohalf the proceeds, minus the apprai sed value of thefifty acres at the time of sale, and also minus t he $50,000 of inherit ed money that M rs. Hausmann had put into the residence. If the appe llee chos e to s ell the home at any time, Dr. Hausmann would li kewise be entitled to the same portion o f the equity as he would upon her remarr iage.

We believe t hat several purposes are served by a judicial divisi on of marital propert y inci dent to divor ce. One obvi ous purpose is to give each party

an equitable portion of the property that was accumulated by t he efforts and contribution s of both parties. Another is to pr ovide each of the parties w ith sufficient pr operty t o meet that party ’s future needs. See Tenn. Code Ann. § 36- 4-121.

Yetanother purpose is to allow t he parties to di sentangle thei r financial aff airs, so that each may get on with his or her own life without unnecessary involvement of the other. This purpo se is more easily achieved in cases lik e the presentone, where the necessary involvement between the partie s is reduced because no minor c hildren are involved.- 9 - We do not b elieve that t he tri al cou rt’sdivi sion o f the eq uity in thehome servesany of the above purposes. While both parti es contributed substantiall y to the cons tr uction and maintenance o f the home, an d the husband theref ore has a theoretical right to a share in the equity, the economic benef it to him of the conditional right to receive that equity

is minimal, and the requirement that the wi fe sell the home if she remarri es is an unnec essar y int rusio n on her

freedom.

The trial cour

t correctl y recog nized that i t is appropr iate to allow the wi fe to continue to li ve in the home, if she is able to do so. Sh e wishes to maintain her emotional ties to the hous e and to the C olum bia c omm unit y, while t he husband now livesand works in Nashville. We also f ind no fault with the court’s reasoning that she would be entitled to the larger share of the equity in the homeif it were sold, because of the contributions o f her relatives.

The hus ban d has been gran ted the undivi ded right t o his medical practice, which i n his hands is a productive asset. The house cannot be considered a productive asset, but

it is by far the most

valuable pr

operty the pa rties accumul ated during their marri age. (The tr ial court found t he ho me and f ifty acres to be worth $350,000, and the medical practice to be worth $50, 000). It is clear that by granting the wife undiv ided title to the marital home, she is getting a far larger share of the marital assets than i s the husband. But we believ

e that such a

divisi on is equita ble, i n accordance w ith the factors s et out in Tenn. Code Ann. § 36-4-121 (c) for th e divisi on of marital prope rty, espec ially fact or (4) “the relati ve abili ty of each part yfor future acquisi tion of capital as sets and income.”

One problem involved in di vesting the husband of his i nterest is t hat the remaining $185,000 balance on the loan the husband used to purchase the Nashville practice is collateralized by the equity in the house and land. Un til that l oan is paid bythe husband it w ill remain a restraint on the wife’s

ability to sell the pr

operty. The- 10 -

trial judge did not deal with that problem and the parties have not raised it on appeal, so we will not attempt to resolve ithere except to point out that

the obli gation b elongs exclusively

to the husband and th e wife is entitled to i ndemnification for any losses that result from the husband’s lo an.

On balance, this

court is of the opinion that granti ng the wife the mar ital home is the cours e best calcul ated to give each of the parties the freed om to live their lives w ithout unwel come involv ement of the other.
IV. Alimony

In Tenn. Code Ann. § 36-5- 101(d) the leg islature se ts out an exhau stive list of factors for

the court to consider in determining the a ppropriate level of support and maintenance for an obligor spouse to pay. There is no need to copy the entire list verba tim i n thi s opi nion , but we note that some of thefactors that suppo rt the rig ht of Mrs. Haus man to receive substanti al alimony from her former husband are the duration of the marriag e, the age and physi cal co ndit ion o f th e par ties , the relat ive earning capac ity of the par ties, and thestandard of liv ing establi shed by the par ties during thei r marriag e.

Mrs. Hausmann was

fifty year

s old at thetime of trial. Th ough she has an R.N. degr

ee, she no long er

has an active nursing license. To obtain such a license at this point w

ould requir

e several years of addi tional study . Further, she suffers from rheumatoid arthritis , and a compressi on fracture of the spi ne, and would not be able to perform many of the funct ions traditi onally ass ociated wi th the nursingprofession, without suffering severe pain. Sin ce the separati on from her husband, s he has been workingtwo days a week at a church daycare center, and earning $30 0 per month.- 11 - The appellant arg ues that because of her prior training asa nurse, Mrs. Hausmann would be an appropriate candidate for rehabilitative alimony rather th an permanentali mon y. Though we do not find it inconceivable tha t she might obtain gainful employment in som e f ield that would enable her t o bypass her physical limit atio ns, we belie ve that the evidence supports the t rial court ’s determinati on that she should rec eive ali mony in futuro, until her death or remarri age.

We also believe, however, that the evidence preponderates against an award of $5,000 per mo nth. In se tting the amount of alimony , the most import ant factors are the oblig ee’s need and the obligor’s ability to pay. See Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1 993); Lancaste r v. La ncaster , 671 S.W.2d 501, 503 (Tenn. App. 1984). Another import ant factor in some cases is the relative fault of the parties. We will ex

amine each of these factor s in turn.

a. Need

The wife filed a

Sworn Statement of Income and Ex penses, indicating total monthly expenses of about $4 ,000. Of that amo unt, expenses on the house amounted to almost $2,000. Mortgage payments on the $355,000 hou se were only $607 per month, but in surance and taxes were l isted as cost ing $303 per month, utilit i es, $608 per month, and mai ntenance, $400 per mont h. Other items in the categoryof general expenses were car payment, gas, oil, repairs and insurance, $470 per month, and “oth er,” $204 per month.

The larger items in the $1,290 categor y of personal expenses inc luded food at $300 per month, c lothing at $ 200 per month and “Misc ellaneous (C ontributions & Gif t s)” at $400 per

month. The wife i ndicated that she needed $5,000 per month in order to net t he $4,000 after taxes that she required to meet her monthly expenses.- 12 - As ment ione d above, the n eed o f t he obligee is a prime factor to conside r in setting alimony, and the court is directed by

statute to cons ider

th e standard of living the parties enjoyed duri ng their mar riage. Unfortunately, it may not be possible to mai ntain the marital li ving standard if the same income that previously only suppor

ted one household i s now cal led upon to suppor t two.

b. A bility

to Pay

When he was still pract ic ing in Col umbia, Dr. H ausmann created a Professional Corporation for liabili ty and tax purposes. The pr

oof shows that

on April 1, 1994, Dr. Ha usmann (or his P.C.) entered into a management servic es agreement with St. Thoma s Ho spi tal. By the t erms

of that ag reeme nt, St. Thomas pays the overhead exp ense s of D r. Hausm ann’s practice in exchange for 50% of his gross receipts. We note that there is testimony in the record that i t is not at al l unusual for overhead to consume 50 % or more of the revenue produced by a gener al medical practice.

Unfo rtunate ly, a copy of the contract has not been made a part of the record, whi ch ma kes it d iffic ult for u s toeva luat e oth er t esti mony to t he eff e ct that there are some o verhead ite ms that are not covered by the contract, and that the appellantmust reimburs e St. Thomas for ove rhead expenses it pays in excess of 50% of gross receipts. Two thing s that are cl ear from the record are that Dr. Hausmann’s salaryis paid from that half of his receipts that are left over after St. Thomashas been paid, a nd that the $1,917 monthl y payment o n the debt from his pu rchase o f Dr
. Foreman’s prac

tice is not covered by

the contract.

In 1 992 (the first full year in which Dr . Hausmann engag ed in his new Nashville practice) he had gross receiptsof $308,000. In 1993 the g ross amounted to $325,000. In 1994 hi s gross r eceipts amounted to $25 1,000. The decline in- 13 -

receiptswas attributed in part to changing rules of Medicare reimburse ment and in part to stress ov

er the divorce. We find it reasonable to assume, therefore, t hat in the last year for which we have records, the appellant’s personal income amounted to no more than $125,500, be fore income taxes and corpo ra te taxes , and perhaps somewhat les s.

Dr. Hausmann’s ow n income and ex pense statement on ly lists the incomeh e receives from his $6,500 mont hly salary, and not the profits from his p ersonal corporation. W e therefore do not f ind credible his assertion that his obligations

to his w ife and to the bank consume v irtually his entire income, forcing him to live solely on the good graces of his creditors.

The expense si de of his statement i ndicates total monthly expenses of $3,334. Of that amount , o ver $1,500 i s allocated to insurance ex penses (incl uding insurance forthe wife). There was testimony that some of the insurance obligatio ns were paid out ofthe professi onal c orporation’ s acco unt, an d an imp licat ion that some may have actually been included in the overhead pa id by St. Thomas.

Despite the deficiencies and am biguities in his income and expense statement, it is cl ear that Dr. Hausman is maintaini ng a far more modest l ife style th an is his former w ife, particular ly in v iew of the fact thathe resides i n a rented two room apartment and dri ves a ten year old stati on wagon.

W e bel ieve that we can fairly infer from the reco rd that on his current income, Dr. Hausmann would be unabl e to pay $5,0 0 0 per month in al imony (or $60,000 a year), remain current on his monthly debt payments of $1, 917 (or $22,004 a year), and maintain a rea sonable standard of living for himself in Na shvill e.- 14 - The appellee argues that Dr. Hausmann could earn more money if he started workin g part-ti me in the emergen cy room again, as he did previ ously, and the trial court found that D r. Hausmann “. . . has an unli mited e ar ning capaci ty, havi ng practiced medicine for in excess i f twenty ( 20) years .” How ever, we d o not b elie ve that Dr. Hausman’s income is as elastic as the trial court indicates.

To the c ontr ary, we believe that Dr. Hausmann’s experience has amp ly demo nstrated that whil e physici ans are wel l compensated, ther e are limits

to wha t they can earn, and in particular, limits on what he himself is capable of earning. Dr. Hausman has testified that over half his current patie nts are o n Medicare, so his incom e may be further constrained by future changes i n Medicare compensat io n rates.

c. Fault

The trial cour

t ref ers to the wife in its final order as “the innoc ent spouse.” Elsewher

e in the order he say

s “the proof is

clear the Pl aintiff destroy ed this marriage”and in another pl ace “[t]his divorce was caused b y the misco nduct of the Plaintiff.” It is thus reasonable for us to infer that the question of fault weighed heavily in the trial court’s dec ision to g rant the appell ee alimony of $5,00 0 per month.

W hile Tenn. Code Ann. § 36-5-101( d) permits th e trial cour t to consider the relative fault of the parties in setting an a l imony award, spousal s upport awar ds are not intended to bepunitive, nor is fault per mitted to over ride the other factors t he court is direct ed to consider by Tenn. Code Ann. § 36- 5-101(d). Brown v . Brown , 913 S.W.2d 163 (Tenn. App. 1994).

In any case, after t horoughly reading the transcript of evidence, inclu din g the direct and c ross-examination of t he pa rties , we be lieve that both parti es must bear- 15 -

some responsibil ity for thebreak-up of this marriage. Though the tri al court gr anted the wife the div

orce, the all eged adultery of the husband occur red after the relationship of the parties was already beyond repair, due to the fa ilure of each party to extend to the other thatdegree of aff ection and support nece ssaryto maintain the bon ds of matr imon y.

We aretherefore of t he opini on that the husband’ s alimony o bligation should be reduced to $2, 500 per month. The duration of the obligation is to rem ain until the wife’s deat h or remarri age. Of course , if there is a significant

and material change of circumstances , such as a substantial change in theinco me o f eit her p arty, the support obli gation may be amended upon t he filing of a peti tion for modificati on of alimony.

V. A ttorney Fees

The trial court ordered Dr. Hausmann to pay $9,645 of the attorney

fees incurred by Mrs. Hausmann. An award of attorney fees in a divorce case is considered to be a form of alimony in solido. Raskind v. Raskind 45 Tenn. App. 583, 325 S.W.2d 617 (1959); Storey v. Stor ey , 835 S.W.2d 593 (Tenn. App. 1992). The trial court is v

ested with wide dis cretion in awarding attorney fees, and will not be reversed, absence abuse of that discr etion. Elliot v.E

lliot , 825 S.W.2d 87 (Tenn. App. 1991). We do not find any such abus e of discretion in this case
.
VI.

The order of the tria l court is affirmed in part and modi fied in part. Remand this cause to the Chancery Court of Maury Co unty fo r furth er proce edings consistent w ith this opi nion. Tax the costs on appeal equally to both parties
.- 16 - ________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE