FILED

March 29, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

CONNIE FLYNN RAMSEY, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9805-CH-00262

v. )

) Dickson Chancery

RICHARD ALLEN RAMSEY, ) No. 4788-87

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR DICKSON COUNTY

AT CHARLOTTE, TENNESSEE

THE HONORABLE ALLEN W. WALLACE, CHANCELLOR

ROBERT TODD JACKSON

Jackson Law Office

222 Second Avenue North, Suite 419

Nashville, Tennessee 37201

ATTORNEY FOR PLAINTIFF/APPELLEE

JENNIFER DAVIS ROBERTS

106 Center Avenue

Post Office Box 944

Dickson, Tennessee 37055

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AS MODIFIED,

AND REMANDED

WILLIAM B. CAIN, JUDGE

OPINION
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This is an appeal from a divorce decree terminating a 28 year marriage.

At the time of the divorce hearing on March 26, 1998, Connie Flynn

Ramsey was 51 years of age and Richard Allen Ramsey was 49 years of age.

They parented one child who was emancipated and attending college at the time

of the divorce.

When the parties married in 1969, appellant was enrolled as a full-time

student in pharmacy school while appellee worked for the University of

Tennessee at Memphis earning minimum wage. After graduation from

pharmacy school, appellant took a position with Goodlark Hospital Pharmacy in

Dickson, Tennessee and the parties moved to Dickson in 1976 and have

continuously resided there, at least until the divorce action. The daughter of the

parties, Stephanie Ramsey, was born in 1977 and appellee, for the next two

years, was occupied as a full-time homemaker and mother. From 1979 to 1981

appellee was employed at Parkside Surgery Center and thereafter employed at

SuperX Pharmacy in Dickson until 1987 with mostly part-time work. The

parties maintained a middle class standard of living throughout the marriage and

at least from the period 1992 through 1996, husband earned between $64,000

and $74,000 per annum. He left Goodlark Hospital near the end of 1996 and

took a positionwith the Veterans Administration Hospital Pharmacy in Nashville

at a salary of $57,854 per annum. During these same years in addition to being

homemaker and mother, wife earned in her outside employment, between

$11,500 and $15,500 per annum.

In 1994, appellant commenced an adulterous relationship with another

woman and his adultery was the basis upon which the trial court granted the

divorce to Mrs. Ramsey. It appears from the testimony of both parties in this

case that Mrs. Ramsey, throughout the marriage, was an excellent mother and

wife and was in no way responsible for the breakup of the marriage. Mr.

Ramsey was a good provider and a good father, even after the commencement

of his adulterous relationship with his paramour.

Upon granting the divorce the trial judge adopted the proposed

dissolution of marital property submitted by the wife resulting in a total value
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award to the wife of $221,352 and a total value award to the husband of

$267,155. By supplemental decree and in order to essentially equalize marital

property distribution the trial court granted Mrs. Ramsey a $25,000 judgment

against Mr. Ramsey. On appeal, the first issue of the appellant is: "Whether the

trial court erred when it awarded the parties' residence and a 1998 Ford Mustang

automobile to wife without requiring wife to be responsible for the debt securing

the realty and automobile; without ordering wife to hold husband harmless from

these debts."

Upon this assertion appellant is in error. The decree of the trial court

granted the home of the parties and the 1998 Mustang automobile to Mrs.

Ramsey "subject to any indebtedness thereon." Appellee is already responsible

for the indebtednesses against both the home and the car and no action of the

court can prejudice the rights of creditors against both of them as parties to the

original indebtedness. The trial court did not abuse its discretion by declining

to require appellee to hold appellant harmless from any debts against these

properties, although appellant would appear to be effectively protected by the

substantial equity in each of these assets.

The second issue raised by the appellant is: "Whether the trial court

erred in its overall division of the parties' property by awarding wife TwentyFive Thousand Dollars and 25/100 ($25,000.00) in addition to the other assets

awarded to wife."

Distribution of marital property in Tennessee is governed byTennessee

Code Annotated section 36-4-121. This statute requires the court to ". . .

equitably divide . . ." the marital property taking into consideration all of the

factors set forth in this statute.

The trial court has wide discretion in the division of marital property

and such division will not be disturbed on appeal unless the evidence

preponderates against the trial court holding. Tenn.R.App.P. 13(d); Shackleford

v. Shackleford, 611 S.W.2d 598 (Tenn.App.1980);Fisher v. Fisher, 648 S.W.2d

244 (Tenn.1983).
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In this case the appellant offered precious little help to the trial judge

in valuing or otherwise assessing marital property. At the very outset of the trial,

Mr. Jackson as counsel for Mrs. Ramsey and Mr. Wolf as counsel for Mr.

Ramsey, all but agreed to the division of property.

MR. JACKSON: ...With respect to the division of

property I had tendered to Mr. Wolfe this morning and

everyone's gone over it and we are pretty much in agreement

that of this marital estate the assets will be divided as we

have suggested on this document here. If I may pass that to

The Court. There might be a question raised by Mr. Ramsey

with regard to a couple of the values but I think before a

final decree is entered we are going to just double-check two

of those figures and make sure they are right but assuming

they are right then the division of the assets will be as per

this proposal; is that correct, Mr. Wolfe?

MR. WOLFE: That's correct. We have some

disputes regarding the actual valuations and there's no

dispute about how they are going to be divided but the

valuations may be slightly different.

Tennessee Code Annotated section 36-4-121(a) provides that marital

property should be equitably divided without regard to fault. Equitable division

does not necessarily mean equal division and the trial court is not thus bound to

provide for an equal division between the parties but may vary the percentage of

value in distribution if the court so determines that equity so requires. Barnhill

v. Barnhill, 826 S.W.2d 443 (Tenn.App.1991); Word v. Word, 937 S.W.2d 931

(Tenn.App.1996).

In this case the appellee did not seek anything more than an equal

division based on marital property value. This is exactly what the trial court

attempted to do in adopting the proposed division asserted by the wife without

objection from the husband. In order to equalize the division in value, he granted

a judgment against husband in the amount of $25,000. There is no abuse of

discretion in the division of property; however, appellee asserts in her brief that

she has no objection to reducing the $25,000 judgment to $22,901.50 plus

statutory interest since such a judgment would be in conformity with her original

request to the trial court. The judgment will be reduced accordingly.
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The third and most plausible issue raised by the appellant is: "Whether

the trial court erred in awarding wife the sum of Eight Hundred Dollars and

no/100s ($800.00) per month as alimony in futuro."

The specific intent of the General Assembly in matters relating to

alimony is set forth in Tennessee Code Annotated section 36-5-101(d)(1).

Rehabilitative alimony is preferred but alimony in futuro is proper if the relevant

factors so indicate. The statutory factors to be considered are:

(A) The relative earning capacity, obligations,

needs, and financial resources of each party, including

income from pension, profit sharing or retirement plans and

all other sources;

(B) The relative education and training of each

party, the ability and opportunity of each party to secure

such education and training, and the necessity of a party to

secure further education and training to improve such party's

earning capacity to a reasonable level;

(C) The duration of the marriage;

(D) The age and mental condition of each party;

(E) The physical conditionof each party, including,

but not limited to, physical disability or incapacity due to a

chronic debilitating disease;

(F) The extent to which it would be undesirable for

a party to seek employment outside the home because such

party will be custodian of a minor child of the marriage;

(G) The separate assets of each party, both real and

personal, tangible and intangible;

(H) The provisions made with regard to the marital

property as defined in § 36-4-121;

(I) The standard of living of the parties established

during the marriage;

(J) The extent to which each party has made such

tangible and intangible contributions to the marriage as

monetary and homemaker contributions, and tangible and

intangible contributions by a party to the education, training

or increased earning power of the other party;

(K) The relative fault of the parties in cases where

the court, in its discretion, deems it appropriate to do so; and

(L) Such other factors, including the tax

consequences to each party, as are necessary to consider the

equities between the parties.

The proof in the case shows that the husband has an earning capacity

of about four times the earning capacity of the wife. The husband is a college

graduate pharmacist. The wife is a high school graduate. The duration of the

marriage was 28 years. Both parties are in good physical and mental condition.
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The division of marital property has been approximately equal. The standard of

living of the parties established during the marriage was what one might call

middle class. The tangible and intangible contributions of the wife to this

marriage as a wife, mother and homemaker are undisputed and indeed

acknowledged by the husband. The proof shows no relative fault of the parties

but total fault as to the husband.

The award of alimony in the amount of $800 per month is not

permanent but expires by its own terms on November 1, 2011, the date of the

65th birthday of the wife.

When all relevant factors in the award of alimony are considered in the

light of the proof of this cause, it was well within the discretion of the trial judge

to award alimony in the manner in which he awarded it. This wife has obtained

a divorce from the husband after 28 years of marriage. This divorce resulted

solely from the misconduct of the husband, and wife is entitled to maintain her

prior standard of living within reasonable economic limits. Lancaster v.

Lancaster, 671 S.W.2d 501 (Tenn.App.1984); Aaron v. Aaron, 909 S.W.2d 408

(Tenn.1995).

The award of alimony in this case was well within the discretion of the

trial judge and that discretion has not been abused.

The judgment of the trial court will be modified to reduce the monetary

judgment in favor of the wife from $25,000 to $22,901.50 plus statutory interest.

In all other respects the judgment of the trial court will be affirmed. The

application for attorney fees by the appellee is denied.

The case is remanded to the trial court for such further proceedings as

may be deemed necessary by the trial court.

Costs of this cause are assessed against the appellant.
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_________________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

___________________________________

BEN H. CANTRELL, P.J., M.S.

___________________________________

PATRICIA J. COTTRELL, JUDGE