# FILED August 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

JOYCE CHARLENE PRESTON, ) ) Plaintiff/Appellee, ) Sumner Chancery No. 96D-282 ) v. ) ) Appeal No. 01A01-9806-CH-00289 JAMES THURSTON PRESTON, ) ) Defendant/Appe

llant. )

APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY

AT GALLATIN, TENNE SSEE THE HONORABLE TOM E. GRAY, CHANCELL OR For the Plaintiff/ Appellee : For the Defendant/Appellant : John M. Cannon F. Du lin Kel ly Goodlettsville, Tennessee Cli nto n L. K ell y Andy L. Allman Hendersonville, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. DAVID R. FARMER, J.OPINION

This is a divorce case. The parties signed a prenuptial agreement prior to their marriage. The wife became disabled after the parties had been married approximately eight months, and the parties separated. The trial court held the prenuptial agreement invalid and awarded alimony in futuro . The husband appeals.

We affirm. Defen dant/

Appellant James Thurston Pre

ston (“Husband”)

owned the GooseCr

eek Inn in Franklin, Tennessee. Plaintiff/Appellee, Joyce Charlene Preston (“Wife”) work

ed as a desk

clerk at the Inn. After

a relationship of approximately seven years, the parties married in October, 1995. It is un disputed that, for

many years prior

to the marriage,

Wife had episode

s of alcohol abuse

. Husband asserts that, prior to their marriage, Wife promised to stop drinking. On the day of their marriage, Husband presented Wife with a prenuptial agreement, which she signed. At the time of t heir mar riage, Wife was 54 years old, and Husband was 65 years old. During the marriage, Wife did not work outside the home. The parties had a short and tumultuou s mar riage. Each accused the other of verbal and physical abuse. Husband contende d that after their

marriage Wife again began drinking too much. Wife accused Husband of constantly criticizing her cooking and housekeeping; Husband said that Wife didn’t cook or clean. Wife accused Husband of physic

ally abusing her by shoving her into a closet and injuring her neck. In June, 1996, approximately eight months after the parties’ marriage, Wife suffered a cerebralstroke. The parties disput e Husband’s rea

ction to the stroke . Wife asserts that, when she suffered the stroke, Hu sband “holler ed” at her, kicked her, accused her of faking her condition, refused to seek medical attention for her, and left her to have lunch with his former mother-in-law and his son. Husband denied this behavior. He sai d that he was supportive of her and offered several times to take her to the hospital, which Wife refused. He said Wife began verbally abusing him, so he left to have lunch with his former mother-in-law and his son. Wife was admitted to the hospital for the stroke. I t is undisputed that H

usband did not come to the hospital to see

her for severa

l days. Husband sa

id that Wife told him

not t o come to the hospital. Regardless, after several days, Husband came to the hospital to see Wife. Wife asserts that Husband started an argument with her in her hospital room and that a nurse made Husband leave. Husband said that when he visitedWife in the hospital, she began yelling at him and asked a nurse2

to make him leave. It is undisputed that, when Wife was discharged from the hospital, she stayed with her mother, and the parties did not thereafter live together. After the stroke, Wife was permanently disabled. It is undisputed that she is unable to drive, to read, or to wor

k. Her condition is

permanent. On July 16, 1996, Wife filed for divorce. Husband filed an answer and counterclaimed for divorce. Pending trial,

Husband was ordered to pay Wife $1,750 per month in support, as well as other expenses. The trial court appointed a guar dian ad litem for W

ife to determine h

er ability to testify. The guar

dian ad litem conc

luded that Wife c

ould testify but might

become emotional

. In the hearing in this

cause, the trial

court heard leng

thy testimony from bo

th parties, as well

as several other witnesses. In the hearing, Wife contended that she signed the prenuptial agreement under duress andthat there was no t a full and fair di

sclosure of Husba

nd’s assets

prior to execution of the agreement. Husband contended that the prenuptial agreement signed by the parties included

an attachment listing his assets. Husband said that the attachment could not be located after the parties’ marriage. Husband asserted that Wife was knowled geable about his financial assets because, at tim es prior to their marriage, she worked for Husband’s business as an accountan t an d bookkeeper. The trial court heard detailed testimony regarding the parties’ financial issues and the parties’ proposed property division. Husband testified that his in come from all sour

ces is approximately $20,600 per month, or

over $240,000 per year. After the parties separated, Wif e began drawing

Social Security dis

ability benefitsof $530 per month. Sh e received a lum

p sum Social Securit

y payment of approximately $2,000 as well. Both parties submitted detailed proposals for dividing the personal property. The trial court consid

ered the depositi

on of a neurologis

t, Mary Ell en Clin ton, M.D., who conducted

an independent medical examination of Wife. Dr. Clinton testified that the stroke had left Wife with significant visua l impai rment as well as depression and other physical problems. Dr. Clinton believed that Wife exaggerated her problems and described having to “devise

techniques to distract” Wife in order to evaluate how much she could see. Dr. Clinton felt that Wife co

uld see well enough to take care

of her personal needs. However, she believed that she would have substantial difficulty reading, and sai

d that she is unable

to drive and unabl

e to be gainfull

y employed. Dr. Clinton confirmed that Wife’s condition is permanent.3

After considering the testimony and other evidence, the trial court issued a written order w

ith

a memorandum detai

ling its factual fin

dings. It found th

at Wife d id not sign the prenuptial agreement

under duress, but

found that Husband

had not proven tha

t Wife was fully kn

owledgeable about the value of his assets or

that he had made full disclosure prior to execution of the agreement. Consequently, the trial court held the prenuptial agreement invalid and unenforceable. The trial court found that Wife was not a credible witness. It noted that it did not accept a

ll of Husband’s testimon

y, but found him “

more credible than his

wife.” The tria

l judge generally credited Husband’s version of the events surrounding Wife’s stroke and subsequent hospitalization. The trial court noted Dr. Clinton’s testimony that Wife exaggerated her co ndition, but concluded, as did Dr. Clinton, that Wife can no longer drive and “cannot be gainfully employed.” The trial court found both parties at fault for the demise of t he marriage. It detailed the division of the parties’ personal property and real property. The trial court found that Wife used her physical disability to avoid coo perating with discovery. It

noted that Wife had not presented evidence of how she spent the spousal support from Husband and the Social Security disability income, and inferred that Wife “was hiding matters about her economics.” Nevertheless, on Wife’s request for alimony, the trial court found: Joyce Charlene Preston has a need for support. James Thurston Preston has the ability to

pay. Mrs. Preston is entitled to alimony in futuro. She is no longer abl e to work outside the ho

me. The Social Sec

urity Disabilit

y she is rec eiving is not sufficient to mee

t her monthly expen

ses. The trial court found

that Wife neede

d $2,080 per month

to meet her monthly expenses. It awarded her $1,550 per month in alimony in futuro

. Husband had asserted that Wife did not disclose to him the $11,600she received in Social Security disability income d ur ing the pendency o f the proceeding

s and sought to rec

oup these monies. The trial court found this request justified, and held:

In consideration of the $11 ,600.00 Social Sec urity Disability re

ceived in addition to payments by James Thurston Preston of $1,750.00 spousal support, the payment of the mortgage on the marital residence, the payment of the mortgage on the condominium, the minimum monthly payment on her MasterCard through Chevy Chase Bank, and the payment of her health insurance, the Court awards no alimony in gross for attorn

ey fees. From this order, Hu

sband now appeal

s.4

On appeal Husband asserts that the trial court erred in holding the prenuptial agreement invalid, and in awarding a limony to Wife. Husb

and also contends that the trial court awarded Wife $11,600 in attorney’s fees and asserts that this was an error. Since this case was tried by the trial court sitting

without a jury

, we review the c

ase de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Tenn. R. App. P. 13(d). Husband argues first that the evidence pr

eponderates ag

ainst the tr

ial court’s f

inding that Wife was not sufficiently

knowledgeable about Husband’s financial assets and that Husband did not make full and fair disc

losure of his ass

ets pri or to execution of the prenuptial agreement. He contends that the prenuptial agreement should be deemed valid and should be enforced. Tennessee Code A

nnotated § 36-3-5 01 provides: [ A]ny an tenuptial or prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage wh ich is t he subject of such agreement

shall be binding upon any court having jurisdiction over such s pouses and/or such agreement if such agreement is deter min ed, in the discretion of such court, to have been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse. . . . Tennessee Code Annotated § 36-3-501 (1996). The “knowledge” component of the statute has been interpreted to mean: [t]hat the spous e seeking to enforce an antenuptial agreement must prove, by a preponderance

of the evidence, either that a full and fair disclosure of the nature, extent and value of his

or her holdings was provided to the spouse seeking to avoid the agreement, or that disclosure was unnecessar y b ecause the spous

e seeking to avoid the agreement had independent knowledge of the f

ull nature, extent, and value of the proponent s

pouse’s holdings. Randolph v. Randolph , 937 S.W.2d 815, 817 (Tenn. 1996). Thus, Husba nd in th is case had the burden of proving that ful l disclosure was ma

de, or in the alternative, that Wife had sufficient prior knowledge of his a

ssets. Husband in this case maintain ed that a schedule

of his assets

was attached to the prenuptial agreement

when Wife signed it. However, a copy of the schedule could not be produced at trial, and Wife disputed its existence. In the alternative, Husband contended that Wife had full knowledge of his financial assets

prior to executio

n of the agreeme

nt through her emp

loyme nt with him. Wife acknowledged

doing some bookkeeping for one of Husband’s busi nesses but denied having knowledge of his ot

her businesses or

knowledge of his pe

rsonal assets.5

Although the trial court generally concluded that Wife was not a credible witness and found that Husband was “mor

e credible than h

is wif e,” the trial court noted that it did not accept all of Husband’s testimony. With regard to the prenuptial agreement, the trial court found that Husband had not proven that Wife was fully knowledgeable about his assets or that f

ull disclosure was made. On this issue, then, the trial court implicitly credited Wife’s testimony. When the resolution of the issues in a case

depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in their manner and demeanor while testifying is in a far better position than this Court to decide t hose issues. McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). The weight, faith, and credit to be give n t o any witness’s tes timony lies in the fir

st instance with the

trier of fact, a

nd the credibility accorded will

be given great weight by the appellate court. Id .; In re Estate of Walton v . Young , 950 S.W.2d 956, 95 9 (Tenn . 1997). Considering the trial court’s implicit determination of the parties’ credibility on this issue, the evidence does not preponderate agai nst the tri al court’s conclusion that the “knowled ge” component of

the statute was n

ot met and that the prenuptial agreement

was therefore invalid and unenforceable. The decision of the trial court is affirmed on this issue. Husband next argues that

the trial court erred in awarding alimony in futuro . He stresses the short duration of the pa

rties’ marriage

, noting that they co

habited for only e

ight months prior to Wife’s stroke, a

nd the parties’ e

nsuing separation . Husband points to testimony from Dr. Clinton indicating that past alcohol a buse can contrib

ute to the cause of a

stroke and argues that there is no evidence that Wife’s stroke result from anything that transpired during the marriage. In response, Wife emphasizes Husband’s income of over $240,000 per year, as well as the unequivocal testimony of Dr. Clinton that Wife is unable to drive and unabl

e to work, and that her disability is permanent. Wife points to the trial court’s finding that Wife has a gr ea t need for alimony and that Husband unquestionably has the ability to pay. The determination of the amount of alimony in a given case is in the discretion of the trial court. Ford v. Ford

, 952 S.W.2d 824, 827 (Tenn. App. 1996) (citing Ingram v. Ingram ,721 S.W.2d 262, 264 (Tenn. App 1986)). On appeal, “wide latitude” is given to the trial court’s decisions on spousal support. Crain v. Crain , 925 S.W.2d 232, 233 (Tenn. App. 1996). It has long been recognized

that the two most important factors in determining an award of alimony are “the real need6

of the spouse seeking the support” and “the ability of the obligor spouse to provide support.” Ford , 952 S.W.2d at 827. The short duration of the marriage is a factor to consider. Crain , 925 S.W.2d at 234. However, it is not determinative. An additional consideration is whether the spouse seeking

s upport would become a pu

blic charge in the

absence of spous

al support. Indee

d, this is s o disfavored

that an otherwise enforceable antenu ptia l agreement is void

and unenforcea

ble if enforcing the contractual

prohibition agains

t alimony would resu

lt in the spouse being “rendered a public charge. . . .” Cary v. Cary , 937 S.W.2d 777, 782 (Tenn 1996). In this case, there

is no solution that is c

ompletely equitable to both parties. Cle

arly this is

a marriage of exc

eptionally short du

ration. However

, Wife’s need fo

r ali mony is great, and Husband’s ability

to pay is clear. Wife has no source of income except Social Security and spousal support from Husband. Und

er these circum

stances, we cannot conclude that the trial court abused its discretion in awarding alimony in futuro

. Obviously the alimony award may be subject to future modification if Wife becomes eligible for addit

ional income, such

as additional Socia

l Security benefits. The decision of the trial court is affirmed on this issue. Husband argues on appeal that the trial court awarded Wife $11,600 in attorney’s fees as alimony in gross . In its final order, the trial court stated:

James Thurston Preston filed on the 22nd day of December, 1997 a Motion for Credit of Extra Income Received by Plaintiff moving the Court that

he be given a credit for the $11,600.00 of undisclosed income received by the plaintiff

against the division of marital assets or an y or der of support that this Court may enter. The Court finds the motion well-taken. * * * In consideration of the $11,600.00 Social Security Disability receive d in addition to

payments by James Thurston Preston of $1,750.00 spousal support, the payment of the mortgage on the martial residence, the payment of the mortgage on the condominiu

m, the minimum m onthly payment on her MasterCard through Chevy Chase Bank, and the payment of her health insurance, the Court awards no alimony in gross for attorn

ey fees. We must conclude fro

m the Order that th

e trial court, in

its discretion, declined to award attorney’s fees to Wife in light of the undisclosed inc ome, a s well as other factors. The evidence does not preponderate against the trial court’s decision on this issue.7

The decision of the t

rial court is affirmed. Costs are assessed against the Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.