# FILED
Novemb er 7, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk VERA MAU REEN HIGG S, ) ) Plaintiff/Appellee, ) ) Williams on County Ci rcuit ) No. 94639 VS. ) ) Appeal No. ) 01A01-9702-CV-00057 GALE LYNN

HIGGS, ) ) Defendant/Appellant. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM C IRCUIT COURT OF WILLI AMSON COU

NTY AT SHELBYVILLE , TENNESSEE
HONORABL E DONALD P. HA RRIS, JUDGE

Rebecca E. By

rd, #15394 306 Court Square Franklin, TN 37064 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE Edmund Covington Johnston, Jr. Attorney at L

aw 136 Four th Avenue

South P.O. Box 1608 Franklin, TN 37065-1608 ATTORNEY FOR DEFENDANT/APPEL LANT 

### MODIFIED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: DAVID H. WEL

LES, JUDGE BY DESIGNATI

ON WILL IAM H. I NMAN, SENIOR JUDGE-2-

VERA MAU REEN HIGG S, ) ) Plaintiff/Appellee, ) ) Williams on County Ci rcuit ) No. 94639 VS. ) ) Appeal No. ) 01A01-9702-CV-00057 GALE LYNN

HIGGS, ) ) Defendant/Appellant. )



## O P I N I O N
Eachof the captioned parties filed a notice of appea l from a judgment of the Trial Court awarding to the plaintiff-wife a divorce on grounds of a dultery and ina

pp ropriate marital conduct. Alth ough both parties appealed, they agreed that the

husband would present the case to this Court as appellant, and the wif e would do so as appellee. The husband presents the following issues: 1. Did

the Tria l Judge er r inawarding the wife

periodic alimony in the amount of seven hundred fifty (750.00) dollars per month? 2. Did

the T rial Judge err in awarding the wife five thousand ($5,000.00) dollars in attorney’s f ees and two thousand five hundred ($2,500.00) dollars in suit ex pe ns e i n t he fo rm of

ad di ti on al al im on y? 3. Did

the Trial Judge err in awarding the wife a secur ity interest in the husb and’s re al prope rty in Missouri ? 4. Did

the Trial Judge err in ordering the husband to pay the wife ’s visa ind

ebtedne ss?
The wife present s the follo wing issues: I. Whether

the Circuit Judge erred in valuing the business Nashville Landscape Sy stems, Inc. A. Whether

a c counts receivable should be deducted from the value of the business when t he business is the income stream for the obligor spouse.-3- B. Whether

the preponderance of the evide nce su pports a busines s value f or Nashvill e Lands cape Systems, I

nc. in excess of seven thousand f

ive hundr ed ($7,5 00.00) do llars. II. Whether

the Circu

it Judge e rred in valui ng the 120 acre tr act of pr operty in Exeter, Missouri. III. Whether

the Circu it Judge e rred in valuing the marital es ta te pr op er ty. IV. Whether

the Circu

it Judge e

rred in th e div i sion of ma ri ta l p ro pe rt y. V. Whether

th e Circuit Judge erred in the award of alimony and discr etionar y c osts. A. Whether the Circuit Judge erred in theaward of periodic alimony wher

e the w ife is the in no ce nt sp ou se an d e co no mi ca ll y disadvantaged. B. Whether the Circuit Judge erred in the award of alimony in solido in the amo unt of $5,000.00 in at to rn ey f ees to wife and sui t expenses of $2,500.00 where wifehadinsufficient assets to pay her attorney fees and discretionary costs and wife was the innocent spouse. C. Whether

the Circu it Jud ge erred in assigning the cost of the business appraisal to wife. D. Whether

the Circu

it Judge e rred in awardi ng wife a security inter

est in the 120 acretract

of land in Miss ouri. VI. Whether

wife is entitled t

o her att orney fees and costs of appea l.
Many of the controversies between the parties are not included in the issues on appea l. Only the evidence, findings and conclusions of the Trial Court which r elate to the stated issues will be discussed in this opinion.

The evidence reflects that this is a marriage of 20 y ears duration which produced two chi ldren, aged 10 and 12, and a marital estate c onsisting of a residence and its contents, a landscape business in which the parties worked together until their separation, and two tracts of land in Miss ouri.-4- The mari tal re sidence was found to be worth $140,000 mortgag ed for $92,887.39, net $47,112.61. A 37.5 acre tract was found to be worth $35,000.00 and a one-half interest in 120 acres was found to worth $65,000 less a $20,000.00 separate interest of wife, net $45,000.00.

The Trial Court awarded

the wife the ma rita l res iden ce a

nd $18 ,846. 14 ca sh to equal ize the awa rd to the h

usband of the marit al busine ss and the

real es tate in Mis souri.

The Trial Court ordered pay ment to the wife of alimony of $750.00 per month until her de ath o r remarriage or until the husband re aches the age of 65, $5,000.00 attorney fee and $2,500.00 of wife’s “suit expense”. The husband’s first and s econd issues co mplain of t hese awards
.
The stated conditions for continuation of alimony re nder uncertain the duration of the alimony , hence

it cannot be said to

be fixed in

aggr egate amount.

Since the spec ified conditions re nder the duration of the “a limony in futuro ” (subje ct to change), T.C.A. §36-820 - now, 36-5-101(a), Naron v. Naron , 218 Tenn. App. 125, 401 S.W.2d 766 (1966 ), it

is not “alimony in “solido” (final and unc hangeable). T.C.A. § 36-828, now § 36-5-101(a); Spalding v. Spalding , Tenn. App. 1980, 597 S. W.2d 739; Isbell v. Isbell , Tenn. App. 1991 , 816 S.W.2d 7 35; McKee v. McKee , Tenn. App. 1983, 655 S.W.2d 164.

The contention of the wife that the alimony was not subject to the continuing control of the Court is rejected. 

## #2 On the other hand, the contentions of the defendant husband

regarding the amount and duration of the alimony

are not s upported

by t h e evid ence and the law. The L egislature has created a factor of rehabilitation in the award of alimony . However, this does not prevent the-5-

exercise of the broad discretionar y p owers of the Trial Judge in respect to alimony and legal
e xpenses, including fees. Self v. Se lf , Tenn. A pp. 1993, 8 61 S.W.2d 360 ; Kincaid v. Kincaid , Tenn. App. 1995, 912 S.W.2d 140. The marital estate cash “equalizer” of $18,846.14 is not
necessa rily required to be used for such expenses. I n appropriate cases, where the income from marital distribution is adequate to satisfy such expen ses, they might prope rly be disallowed. However, the a mount o f the cash distribution in the present case does not justify the disallowa nce of su ch expense s.

In consi deration of the age of the wife , (42), and her considerable work experienc e i n keeping the books o f busines s activiti es of the parties, this Court has de termined that the $750.00 per month

periodic alimony be consid

ered re habilative and limit

ed to three y ears in duration unless extended by the trial cour t for good cause.

The husband next complains of the imposition of a lien upo n the 120 a

cres of his prope rty in Missouri to secure the pay ment of a limony . No issue

is raised as to the power of a Tennessee Courtto encumber

real estate in Missouri or the proceedings nec essary to exerc ise such power. No fact o r law is pr

esented to otherwise rend

er the e ncumbra nce inva lid or err oneous.

Alth ough not expressed in the husband’s issues; he argues, without citation of evidence
orlaw, that

the Tria l Court should have a

warded a part of the Missou

ri prope rty to him as hi s separa te es tate. Withou t support in fact or law, the argument cannot be sustained. The wife responds , with supporting citations, that the part interest of the husband

in the Missouri land was trans mut edinto marit

al prope rty by p lacing

title in the

joint name s of the pa

rties to th is suit. Batson v. Batson , Tenn. App. 1988, 769 S.W.2d 849.

Fi na ll y, the husband complains that he was required to pay the cre dit card

indebted ness of the wife. The wife’s brief offers a tabulation of the division of responsibility for debts, but-6-

neither party cites e

vidence of

the amoun

t or origin of the c

redit card debt. This court finds no basis for revising the judg ment of the

Trial Cour

t in this re spect.

Th e wife com

plains of the finding of the

Trial Judg e that the

landsca pe busine ss w a s worth only $7,500.00. The Trial Courtappointed a Mr. Parsons to appraise the business. Based upon information received from the husband, he valued the business at between $28,000.00 and $30,000.00. The wife

testifie d th at “th e value o f the business inve ntory was appr

oximately $91,000.00.” The evidence in respect to the value of the business is so convo luted and uncerta in that it is virtually impossible to arrive at a satisfactor y estimate of its true value . The evidence does prepond

erate a gainst the finding of a $7,500.00 value and in favor of a value of $53,000.00. This valuatio n requir

es an increase in the marital estate of $45,500.00 and an incr ease in the “cash equalizer” from $18,846.14 to $41,596.14.
The judgment of the Trial Court is modified accordingly
.
The wife insists with inadequate citation of evidence, that she, the innocent spouse, has been deprived of her former scale of living by the

misconduct of the de

fendant
. She claims that $3,700.00 per month

is requir ed to main

tain her self and

childre n in their forme r scal e of li ving. The $1,384.00 child support, and the $750.00 alimony a mount to$2,134.00 per month. She admits other income of

$1,140.47, making a total of $3,274.00, which is $525.53 less than what she in sist s that she ne eds. H er sta temen ts of e xpen ses in clude s the f ollo wing:
Mortgage pay

ment ........... $899.96 Taxes, insurance, repairs .. 285.41 School tuition
.................. 576.00 Transportation ................. 594.61 Child counseling .............. 175.00-7- The above lis t contain s sev eral ite ms which a

re not pe rmanent in nature , but may

well be prese nt neces sities.

The husband argues that he does not have enough income to pay

this much alimony, but the evidenc e does no t support h is plea. He reliesupon his assertio n that he d raws only $1,300.00 per month salary, ignoring the fac t that r etained earning s of his co

rporation were a

vailable to him. In setting child support underthe guidelines, the Trial Court found his income to be $70,000.00 per yea

r ($5,883.33 per month). Out of thisincome he should be able to pay

$750.00 alimony and $1,384.00 child support, a total of $2,134.00 per month. 

## #3
The wife complains of the action of the Trial Judge in requiring her to pay the fee of the appraiser appointed by the Tria

l Court to evaluate the business of the husband. Neither the memoranda

and orders of the Trial Court or the briefs of the part ies st ates the amount of fee claims by the

appraiser. Upon

remand, the Trial Court should determine the amount to be paid, but it should be paid by the husband, rather than the wife.

Fi na ll y, the wife

seeks dis cretion ary

costs and

legal e xpenses of

this a ppeal. Child support was not an issue in this appeal. Under this circumstance, this Court is not impelle d to penalize either p arty . Each pa

rty should bea

r his or he

r part of the expens e of this a

ppeal.

In summary , the judgment of the Trial Cour

t is modifie d to designate the alim onyof $750.00 per month

as rehabilitative and to limit its duration to three yea rs, subject to extension for good ca use, to inc

rease t he cash p ayment due t

he wife a s part of

the marit

al estate f

rom $22,750.00 to $41,596.14; and to requ ire the husband to pay the fee of the court appointed appraiser.-8- In all other respects, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed equally to t

he parti es, that is , each p arty will pay one-half of said

costs. The

cause is remanded to the Trial Court for further proceedings in conformity with this opinion.

MODIFIED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_________________________________ DAVID H. WEL

LES, JUDGE BY DESIGNATI

ON

__________________________________ WILL IAM H. I NMAN, SENIOR JUDGE