# FILED
December 11, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk JOE LARRY T URNBO, ) ) Wayne Chancery Plaintiff/Appellant, ) No. 8490 ) VS. ) ) Appeal No. BRENDA JANE (THOMPSON) TURNBO,) 01A01-9307-CH-00314 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM TH

E CHANCER

Y COURT OF

WAYNE COU

NTY, TENNES SEE AT WAYNESBORO HONORABL E JIM T. HA MILTON, J UDGE
MICHAEL

W. BINKL

EY 150 Second Avenue, N. Suite 300 Nashville, Tennessee 37219 ATTORNEY ON APPEAL FOR PL AINTI FF/APPELL

ANT DENNIS PL

UNK 404 W. Main Street Savannah, Tennessee 38372 ATTORNEY AT TRIAL FOR PLAI

NTIFF/APPEL

LANT CLAU DIA S. JACK Ja ck & J ac k, At to rn eys 22 Public Square Columbia, Tennessee 38402-0827 ATTORNEYS FOR DEFENDANT/APPEL LEE THO MAS W. HAR DIN 102 W. 7th Street Columbia, Tennessee 38402 ATTORNEYS FOR DEFENDANT/APPEL LEE MODIFIED, AFFIRMED A ND REMANDED.

HENRY F. TODD, PRESIDI NG JUDGE CONCUR: SAMUEL L . LEWIS, JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

JOE LARRY T URNBO, ) ) Wayne Chancery Plaintiff/Appellant, ) No. 8490 ) VS. ) ) Appeal No. BRENDA JANE (THOMPSON) TURNBO,) 01A01-9307-CH-00314 ) Defendant/Appellee. )



## OPINION

The husband appealed from a judgment g ranting to the wife an absolute divorce, alimony in futuro, and division of marital proper ty. The husband also complains of the refusal of the Tria l Judge to r

ecuse himself bec ause of a lleged improprie

ties.

After br iefing and oral argume nt, this Cour

t determi ned that t

he reco rd was ina

dequate to resolve the recusal issue and remanded f or a full airing of the facts supporting the charges of improprie ty a nd whethe

r any improper conduct a

ffecte d the judgment.
The procedure on remand did not result in a full airing of the issues stated in the remand
or a rec ord from

which sa id issues mi ght be ju stly

resolve d by

this Court.

The su pplem ental brief

of the husba nd com plain s of va rious rulin gs of th e Trial Judge regarding discovery

in preparation for the evidentiary hearing on remand. However , during the second argument before this Court, counsel for the husband conceded that the discovery related only to recusal a

nd would have produced no evidence rele vant to the correctness of the judgment rendered by

the Trial Court. Moreover, counsel for both parties ag reed that all evidence relevant to the merits of the appeal is present in the record.-3- Since this cause was heard by the Trial Judge without a jury, his finding s of fact and law are reviewed by this C ourt de novo upon the reco rd T.R.A.P . Rule 13(d ). N.C.N.B. Union Carbide Corporation v. Huddleston , Tenn. 19 93, 854 S.W.2 d 87; National Bank v. Thra ilkill , Tenn. App. 1993, 856 S.W.2d 150.
Since the record is adequate for re view de novo and decision by this Court upon the merits of the case , this Court

has dete rmined to f

orego a resolu tion of the

issues of improprie

ty and leav e them fo

r resolu tion by tribunalsspecial ly c

harge d with that

responsi bility . This procedure was proposed during or al argument and no objection was voiced by counsel.
Upon a de

novo review by

this Court, the judg ment of thi s Court upo n the mer its will cure any prejudice which might have resulted from any errors or improprieties which may have
occurr ed in the T

rial Cour t procee dings.
The husband presents an issue as to the division of marital property . The Trial Court awarde d the w ife pr opert y valued b y the husb and at $60,1 50 and cash o f $185 ,000, makin g a total of $245,150. Husband has filed a statement of marital property in compliance with Rule 15 of the Rules of this Court which is appended to this opinion as Exhibit A. The wife has not filed a counter-statement, but does discuss certain controver ted items, particularly the husba nd’s business, Turnbow E

xpress. The

husband v alued his business a t minus $151 ,803. His accountant stated its book value was $337,000 and that it had an annual income of $402,000. The husband had submitted a financial statement to a bank stating the va lue of the business as $500,000. The finding of the Trial Cour

t that the business wa s worth $3 05,330 wa s clear ly with in th e scop e of th e evid ence on the su bject and is appro ved by thi s Cou rt. By thi s find ing, the husband’s 1/3 interest in the business was worth $101,777.
According to values stated by husband on his Rule 15 Table, of the assets other than the-4-

business, $68,078 w as assig ned to the wife, and $61,532 w as assig ned to the husband. This division is approximately equal, slightly favoring the wife.
The $101, 777 inter

est of the husband in

the busine ss (state d above) was not so evenly divided, for the Trial Court awarded the wife $185,000 ca sh “to equalize the division of the marital e state.”This Court f inds that a

cash pay ment of $5 0,000 to the

wife would accom

plish an appro ximately

equal division of the

marital e state. Th

e judgme nt of the T

rial Cour t will be so modified.
The husband argues that debts should be considere d in division of the estate, but most of the debts cited are debts of the business or his lien indebtedness ag ainst other assets which reduced their value used as stated on the Rule 15 Table. Mor eover, the gross disparity

between the income of the husband and wife is justification for placing the debt-paying

burden on the husband.
Husband argues that the marital estate wa s accumulated through his efforts, but it was accumulated during the marriag e when the wife was caring for home and children which justifies her interest in the accumulation. T.C.A. § 36-4-121(c).
The husband’s third, and last issue complains of the award of $1,500 per month alimony in futuro.

The wife testified: Q. Ms. Turnb o, I’ ve hande d yo u a copy of y our aff

idavit of income and expen ses. To the

best of y our knowl edge isthis a true and accurate ref

lection of what your

income and expenses is at the current time?-5- A. Yes, ma’ am. Q. Do you fee

l that you are ope

rating on enough income now? A. No. Q. Does this i ncome and expense a ffidavit reflec t what you have

been forced to live with since the separation in 1989? A. Yes. Q. And is this s tatement of asset s and liab ilities co rrect to the best of your knowledg e? A. Yes. Q. Ms. Turnbo, realizing that you ha ve reflected your current status on this income and expenses, what do y ou think it would take for you to live on rig ht now if you were

able to pick out a figure that would

allow y ou to live c omfortab ly a s you did before

the separation? What amount do you think? A. Two thousand. Q. A month? A. Uh-huh. There was no cross examination regarding or rebuttal of this testimony except her admission of $240 per month wages and $500 per month child support. She was not asked wha t she would

need to ma

intain he rself and child, he

nce the c hild suppor

t is not a sui

table cr edit against the stated $2,000 need. The $240 per month ea rnings might be a proper cre dit against the $2,000 need. If so, the prove n monthly need of the wife is $1,760.

The wife’s Sworn Statement of Inc ome and Expenses indicates a lesser need than $1,760 per month, but the wife explained that, during the divorce proceedings she was obliged to live on
a m uc h l ow er st an da rd th an pr ev io us ly.

The husba

nd insists th at his inco me is inade quate to p ay

the requ ired alim ony , but his stated sa lary from his bu siness is not his only income, a

nd his exten sive spen ding for luxuries-6-

be li es hi s p le a o f p ov er ty.
The amount of alimony re sts within the sound discretion of the Trial Court which will not be disturbed on appeal in the absence of a c lear showing of erroneous exercise of that discretion. Abney v. Abney , 61 Tenn. App. 531, 456 S.W.2d 364 (1970); Crouch v. Crouch , 53 Tenn. App. 594, 385 S.W.2d 288 (1970).
The judg ment of the

Trial Cour

t is modifie d to reduc e the ca sh pay ment to the

wife to $50,000. As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the husband. The cause is remanded to the Tr ial Court for appropriate further procee dings.
MODIFIED, AFFIRMED A ND REMANDED.

__________________________________ HENRY F. TODD, PRESIDI NG JUDGE CONCUR:

______________________________ SAMUEL L . LEWIS, JUDGE

______________________________ WILL IAM C. KOCH, JR., JUDGE