# FILED

March 29, 1999 Cecil Crowson, Jr. Appellate Court Cle rk CONNIE FLYNN RAMSEY, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9805-CH- 00262 v. ) ) Dickson Chancery RICHARD ALLEN RAMSEY, ) No. 4788-87 ) Defendant/Appel

lant. )

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 N

orth, Suite 419 Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLEE

JENNIFER DAVIS ROBERTS 106 Center Avenue Post Office Box 94

4 Dickson, Tennesse

e 37055 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AS MODIFIED, AND REMANDED

WILLIAM B. CAIN, JUDGE 

# OPINION-2- This is an appeal from a divorce decree terminating a 28 year marriage.

At the time of the divor

ce hearing on March 26, 1998, C onnie Flynn Ramsey was 51 years of age and Richard Allen Ra msey was 49 years of age. They parented one child

who was emancipated and attending college at the time of the divorce.

When the parties marri

ed in 1969, appellant

was enrolled as a full-time student in pharmacy school w hile appellee wor

ked for the

Univ ersity of Tennessee at Memphis earning m in imum wage. After g raduation from pharmacy school, appellant to ok a position with

Goodlark Hospital Pharmacy in Dic k son, Tennessee and the parties moved to Dic kson 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 t he next two years, was occupied as a full-time homemaker and mother. From 1979 to 1981 appellee was employed at Pa rkside Surgery Center and thereafter employed at SuperX Pharmacy in Dickson until 1987 with mostly part -time w ork. The parties maintained a middle class standard of li

ving throughout the mar

riage and atleast from the per

iod 1992 through 1996, husband earned between $64,000 and $74,000 per a nnum. He left Go odlark Hospital nea

r the end of 1996 and took a position with

the Veterans Adm

inistration Hospital

Pharmacy in Nashv

ille ata salary of $57,854

per annum. During

these same years in addit ion to being homemaker

and mother, wife

earned in h er out side employment, between $11,500 and $15,500 per annum.

In 1994, appellant comm

enced an adulterous

relationship with another
woman a nd his adultery was th e basis upon which the trial court grant ed th e div orce to Mrs. Ramsey. It appears from t he testimony of both par ties in t hi s
case that Mrs. Ramsey , thr oughout the marriage , was an excelle nt mother and wife and was in no way responsible for the breakup of the marriage. Mr. Ramsey was a good providerand a good father, even a

fter the commence

ment of his adulterous relationship with his paramour.
Upon granting the divorce the trial judge adopted the p ropo sed dissolution

of marital proper

ty submitted by the wif

e resulting in a total

value-3-

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 propertydistribut

i on the trial court gr

anted Mrs. Ramse

y a $25,000 judgment against Mr. Ramsey. O

n appeal, the first issue of the a ppellant is: "Whethe

r the trial court erred when it awarded the par ties' residence a

nd a 1998 Ford Mustang automobile

to wife without re

quiring wife to be r

esponsible for

the debt securing the realty and automobile; without ordering wi fe to hold husband harmless fr

om these debts."
Upon this assertion appell ant is in error. The decree of the trial court granted the home of the part ies and the 1998 Mustang auto mobile to Mrs. Ramsey "subject to any indebtedness thereon." Appellee is alrea dy responsible f or the indebtednesses a

gainst both the home and the car and no actio

n of th e court can prejudice the r

ights of creditors against both of them as parties to the original indebtedness. The trial court did not abuse its d iscretion by declinin

g to require appellee to hold appel lan t harmless from an y debts against these properties, although appellant wo uld appear to b e effectively prote cted by the substantial equity in e

ach of these assets.

The second issue raised b y the appe llant is: "Whether the trial court erred in its overall division of the parties' pr operty by awarding w

ife TwentyFive Thousand Dollars a

nd 25/100 ($25 ,00 0.00) in addition to the other assets awarded to wife."

Dis tribution

of marital proper

ty in Tennessee is gov

erned by Tennesse e Code Annotated sec tion 36-4-1 21. This statute requ ires the court to ". . . equitablydi vide . . ." the ma rital property taki

ng into consideration a

ll of the factors set forth in this statute.

The trial court has wi

de discretion

in the division of marita l property and such division will not be disturbed on appea l unless the evidence preponderates against the trial co urt 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).-4- In this case the appellant offered precious l ittle help to the tria

l judge in valuing or otherwis e assessing marital property. At the very outsetof the trial, Mr. Jackson as counsel fo r Mrs. Ramsey a

nd Mr. Wolf as counsel for Mr. Ramsey, all but agr

eed to the division of pr

operty.

MR. JACKSON: .. .With respect to t he divis i on of propertyI had tendered to Mr. Wolfe this mornin g and everyone's gone over it and we are pretty much in agree ment that of this marital estat e the assets will be di vided 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 reg ard to a couple of the values but I think before a final decree is entered we are going to just double-ch eck two of those figures and ma

ke sure they are right but assumi ng they are righ

t then the division of the assets will be as per this proposal; is that correct, Mr. Wolfe? MR. WO LFE: That's correct. We have some disputes regardi ng the actual valuations and there's no dispute about how th ey are g oing to be divided but the valuations may be sligh

tly different.

Tennessee Code Annotated section 36-4-121(a) provides that marital propertyshould be equitably divided without regard to fault. Equitable division does not necessarily mea

n equal division and the t rial court is not thus b

ound to provide for an equal division between the parties but may vary the perc entage 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 divisionbased on marital propert y 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 t he division in value, he granted
a judgment against husba nd 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 red ucing the $25,000 judgme nt to $22,90 1.50 plus statutory interest since such a judgment would be in conformity with her original request to the trial

court. The judgme

nt will be reduced a

ccordingly.-5- The third and most plausibl e issue raised by the

appellant is: "Whether the trial court erre

d in awarding wife

the sum of Eight Hund

red Dolla rs an d no/100s ($800.00) per m

onth as alimony in futuro ."

The specific intent of the Gen eral Assembly in matter s relating to alimony is set forth in Tennessee Code Annotated section 36-5-101(d)(1). Rehabilitative

alimony is preferr

ed but alimony in

futuro is proper if

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

(A) The rela

t ive earning capaci

ty, obligations, needs, and financial reso u rces of each part

y, including income from

pension, profit shar

ing or retirement pla

ns and all other sources; (B) The relative educatio n and t raini ng of each par ty, th e ability and opportunity of each party to secure such education and tra

ining, and the neces sity of a party to secure further education and training to improve such party's earning capacity to

a reasonable leve

l; (C) The duration of the marriage; (D) The age and mental

condition of each par

ty; (E) The physical condition o f each party, inc ludin g , but not limited to, physic al disability or incapacity due to

a chronic debilitating disease; (F) The extent to which it w ould be undesirable f

or 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, bot

h 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 home make r contributions, and tangible and intangible

contributions by a party to the education, trainin

g or increased ear

ning power of the othe

r party; (K) The relative

fault of the

parties in cases where the court, in its discre

tion, deems it appropriat

e to do so; and (L) Such other factors, including the tax consequences to each party, as are nec essary to consider the equities between th

e parties. The proof in the

case shows that the

husband has an earning capa

city of about four times the earning capacity of the wife. The h

usband is a college graduate pharmacist. The wife is a high sch oo l graduate. The d uration of the marriage was 28 years. Bot

h parties are in good physical and mental condition.-6-

The divisionof marital proper ty has been approxima

tely equal. The st

andard of living of the parties establi shed during the marr iage was what one might call middle class. The tangible and intangible contributions of the w

ife 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 th

e husband.

The awa rd of ali mony in the amount of $800 per month is not permanent

but expires by its own t

erms on November 1 , 2011, the date of the 65th birthday of the wife.

When all relevant factors in the award of alimony are consideredin the light of the proof of this

cause, it was w

ell within the discr

etion of the trial jud

ge to award alimony in the manner in which he awarded it. This wife has obtained
a divorce from t he hu sband after 28 years of marriage. This divorce resulted solely from the misconduct of the husband, and wife is entitled to maintain her p rior standard of living within reasonable eco nomic limits. Lanca ster v
. Lancaster , 671 S.W.2d 501 (Ten n.App.1984); Aaron v. Aaron , 909 S.W.2d 408 (Tenn.1995).

The award of alimony in this case was well within the discreti on of the trial judge and that di scretion 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 stat

utory interest. In al l other r espects the judgment o f the trial court w

ill be affirmed. The application for atto

rney fees by the appe

llee is denied.

The case is remanded to the trial court for such further proceedings as may be deemed nece ssary by the trial co urt.

Costs of this cause a

re assessed against

the appellant.-7-

__________________________________ _______ WILLIAM B. CAIN, JUDGE

CONCUR:

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

__________________________________ _ PATRICIA J. COTTRELL, JUDGE