# FILED February 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

______________________________________________ JERRY CECIL WILLIAMS, From the Davidson Co unty Circuit Court, No. 94D-4125 Plaintiff/Counter-

Defendant/ Appellant, AFFIRMED AND REMANDED C.A. No. 01A01-9710-CV-00566 Vs. BLANCA NELIDA MELEND EZ James H. Dresche r; Stokes & WILLIAMS, Bartholomew, P.A. o f Nashville For Appellee Defendant/Counter-Plaintiff/ Third Party Plaintiff/Appellee, Charles Watson Cr oss of Nashville For Appellant, Will

iams GLORIA HAY , John Ascione of Na shville Third Party Defe

ndant/Appellant, For Appellant, Hay

______________________________________ _____________________________________ _ TOMLIN, Sp. J. This appeal stems from a lengthy divorce case filed initially by Jerry C e cil Williams (Husband) against Blanca D. M. Will iams (Wife) in the Circuit Court of Davidson County. Husbandcharged Wife with inappropriate marital conduct as well as alleging the existence of irreconcilable

differences. No Marital

Dissolution Agree

ment was filed with

the complaint or at any time thereafter. Wife filed an ans wer in ess ence denying all allegations of Husband’s complaint, except that

a divorce on the ground of irreconcilable differences would be possible, butthen only if an MDA was agreed to and filed with this court. Wife filed a counter-complaint in which she allege

d irreconcilabl

e dif feren ces, cruel and in

human treatment,

inappropriate marital conduct, and the infliction of indignities to her person so as to render her co ndition intolerable. Wife also sought a temporary restraining order prohibitingHusband from harassing

or threatening her in any w ay and at the same time prohibiting Husband from selling, mortgaging, removing, and otherwise dissipating the parties’ real and personal property until the trial in the matter. Wife, in addition, sought alimon y, attorney fees and expens es and civil damages. In addition to Husband’s answer, there w as alsofiled on his behalf a second amended complaint for divorce. Having been permitted by court order, Wife filed suit against Gloria M. Hay (Hay) seeking to set aside fraudulent conveyances by Husband to Hay. Following an extensiv

e tr ial that took place over seven days that extended through several months, the trial court entered its final judgment of divorce, in which in the beginning2

it made the following two findings of fact based upon the entire record:

1. The actions of the plaintiff (Husband) during discovery have made the trial of this case difficult. 2. The court has observed the demeanor of the witnesses and the manner in which evidence w

as presented an

d/or intentionally misstated or withheld, all of which ha s b een duly noted by the court. The court then awarded

Wife an absolute divorce on the grounds of inappropriate marital conduct, adultery, and indignities to her person. Pertaining to the division of property, the trial court held that the property of the parties in Germany, as well as Spa in, was awarded to plaintiff, subject to any liens upon them. Wife

was held harml ess as to any liens. In addition, Wife was awarded one-half of the personal property disposed of by Husband. Wife was also awarded her military pension free and clear of any claim to this pension by Husband. As a further pro perty division, the court ordered Husband to pay Wife the sum of $125,000.00 in cash, representing one-half of t heir mon ey that the court found Husband had brought into the United States through Ms. Hay. The court further declared that “

Mr. Williams and Ms. Hay are witne

sses that a

re notbelievable under oath. Therefore, the court finds specifically regarding those two that they are not credible witnesses.” To further protect theinterest of Wife, the court secured judgments in favor of Wife by liens against real pro

perty that was he

ld in the name of Ms.

Hay as well a

s equipm ent and a laundry business established by Ms. Hay and Husband. The court also enjoined M s. Hay and Husbandfrom

attempting to transfer or encumber these properties or any assets whatsoever prior to the sale thereof. Lastly, Husband was ordered to pa

y to counsel for Wife as attorney fees and expenses the sum of $46,646.00, to be secured by the liens previously mentioned. As a result

of Wife’s motion, the trial court made the following additional findings of fact and conclusions of law, to be a part of the final judgment of divorce, nunc pro tunc . They are as follows: 1. Mr. a nd Mrs. Williams accumulated a substantial marital

estate during the course of their marriage. 2. During the penden

cy of this divorce

proceeding, Mr.

Williams took active steps to diss

ipate the marital estate which included transferring marital assets to his lover, Ms. Gloria Hay. The transfer of assets by Mr. Wi

lliams to Ms . Hay was without3 adequate con si deration and ren

dered Mr. William

s insolvent. Further, these conveyances as to Mrs. Williams were fraudulent and Mr. Wil lia ms sought to defeat any claim she had f

or a fair and equitable share of marital assets in the divorce. 3. That much of the marital estate

consisted of resi

dential, rental, and commercial real property in Germany and Spain. Because of the conduct of Husband and the fact that the property lies beyond the jurisdiction of this court, it is difficult to as certain the value of such property

still owned by the pa

rties. 4. Any and all marita

l assets con veyed by Mr. Willia ms to Ms. Gloria Hay are deemed

to be a fraudulent conveyance of marital assets owned by Mrs. Williams. This court therefor

e finds that the mon

ies c onve yed by Mr. Williams to Ms. Hay for the r esidence at 701 Ro

me Pi ke , Lebanon, Tennessee, and the equipment in the “Gloria Sunshine Laundry” constitutes fraud against the ve sted rights of Mrs. Williams in said property. Husbandand Ms. Hay perfected their respectiv e appeals to the Mi

ddle Section of this Court. However, neither of the two appealing parties filed either a trial transcript or a statement of the evide nce as required by Rule 24 (a)(b) and (c), Tenn.R.Civ.P. Rather, several months following the expiration of the time to file either the transcript or statement of the evidence, the appealing parties proceeded with their appeal on designated portio ns of the technical record, consisted of over sixty exhibits filed in the cause, along with copies of several depositions. The following issue

s have been pres

ented to this Court on

appeal: 1. Whether the trial court erred in holding tha t Hus band made fraudulent

conveyances to Ms. Hay in order to defeat the claim of Wife; 2. Whether

the trial court abuse

d its discretion in th

e manner in which it divided the marital estate; 3. Whether the tria

l court abused its d

isc re tion in ordering Husbandto pay to Wife some of her attorney fees and expenses. 4. Whether the trial court erred in ordering specific liens in

favor of Wife against c

ertain property ; 5. Whether

the trial court erred in denying Ms. Hay’s motion for a more definite statement with regard to Wife’s complaint alleging t he fraudulent conveyance of marital property by Husband to Ms. Hay. The scope of

review of this Court on appea

l is de novo upon the record i n the trial court. All findings of fact

by the trial court come to this Court with a presumption of correctness, and, absent an error of law, unless the preponderance of the evidence is otherwise, w e must af firm4

that finding. Rule 13 (d), T.R.A.P. Newberry v. Newb erry , 493 S .W.2d 9 9, 101 (Tenn. App. 1973). As this Court has already noted, in this nonjury trial the court below heard many daysof testimony from almost a dozen witnesses. Notwithstanding this, neither of the appealing parties filed a transcript of

the evidence or a statement of the evidence in accordance with the provisions of Rule 24, T.R.A.P. It is clear from this record, that evidence in the form of witnesses were heard by the court. On the basis of that evide nce, the court ma

de its findings and c

onclusions. When the evidence heard by the trial court

is not preserved by a certified transcript or statement of the evidence in accordance

with the Rules of App

ellate Procedur

e, it is presu

med that there was evide nce to support the ruling of the trial court. Pickett v. Picke tt , 22 TAM, 2-18 (Tenn. App. 1966), citing Scarborough v. Scarborough , 752 S.W.2d 94 (Tenn. App. 1988). Furthermore, in the absence of a transcript or statement of the evidence, we must conclusively presume that eve ry f act admissible

under the pleadings was found or should have been found favorable to the appellee. In R e Rockwell, 673 S.W.2d 512 (Tenn. App. 1983). Without a transcript of the evidenc e introducedin the court below, the facts found by the trial court are conclusively presumed to be correct. J. C. Bradford & Co. v. Martin Const. Co. , 576 S.W.2d 586 (Tenn. 1979). With regard to the trial court’s finding in this case to the effect tha

t both Williams

and Ms. Hay are not credible under oath and cannot be believed, such a finding by the tria

l court in

a nonjury case is entitled to great weight where the trial court saw and heard the witnesses and observed their manner and demeanor on the witness stand, b

eing in a much better position than the appellate court to judge the weight and value of their testimony. Duncan v. Duncan , 686 S.W.2d 568, 571 (Tenn. App. 1984); citing Smith v. Hooper , 59 Tenn. App. 167, 438 S.W.2d 765 (1968). Again, thi

s finding by the trial court is presumed to be correct in the absence of any transcript of statement of the evidence. As to the issue that the division of marital property was inequitable and constituted an abuse of discretion by the trial court, we respond by stating tha t trial courts

are given wide disc retion in dividing the interest of parties in jointly owned property. Herrin gton v . Herrington, 798 S.W.2d 244 (Tenn. App. 1990). The trial court’s division will be given great weight on appeal. Edwards v. Edwards , 501 S.W.2d 2 83, 288 (T enn. App. 1973). Such a5

division of property will be presumed to be correct unless this Court finds the preponderance of the evidence to be otherwise. Barnhill v. Barnhill , 826 S.W.2d 443 (Tenn. App. 1991). Again, in the absence of either a transcript or statement of the evidence, we are pre vented from

reaching the merits of these issues and therefore must conclusively p

resume that the evidence presented to the trial court justified the action of that court. In Re: Rockwell, supra

. In regard to the contention by Ms. Hay that the trial court er

red in overruling her motion for a definite statem

ent with regard to

Wife’s allegati

ons concerning f

raudulent conve

yances, a review of this counter-claim filed by Wife shows that it complied with the pro visions of Tenn.R.Civ.P. 8.05. Ms. Hay’s contention that she was accused of common law fraud and that such “fraud” ne

eds to be paired w

ith clarity is not we

ll-taken. This issu

e is without merit. As for the contention by the appealing parties that the trial court erred in placing lienson the residence and business equipment involved in this litigation, the Court found that there had been fraudulent conveyances between Husband a nd Ms. Hay, along with the finding of a complete absence of

credibility of the

se parties as witn

esses. By placing liens on this property, the court prevented Mr. William s and Ms. Hay from dispos ing or further en

cumbering these assets. This is entirely proper under the circumstances, and there is no record availab

le to refute this. For the same reasons we have asserted previously, under these circumstances we have no choice but to aff

irm. Lastly, Wife contends that this appeal by Husband and Ms. Hay is a frivolous one and that she should be awarded attorney fees and expenses incurre d by herin connection with her defense in this Court. In the opinion of this Court, if the re ever was a

case on appeal that was justified in being declared frivolous, it is this case. It should have been obvious, and likely was, in the beginning to any reasonable practitioner that on appeal this case had no possible chance for suc cess under any reasonable grounds. To say that it lacks substance would be an understatement.

Accor dingly, this Court finds the a ppeal of the part

ies to be frivolous

in accordance

with the provisions of T.C.A. § 27-1-12 2 and Dearin v. Dearin , 9 TAM 42-19 (Tenn. App. 1984). This ca use is remanded to

the trial court wh

ich is respectf

ully direc ted to hold a hearing upo

n remand to ascer

tain the reasona

ble amount of attorney fees to be awarded counsel for Wife from and after the filing of the notice of appeal by Husband and Ms. Hay to

and including the hearing in the trial court on this motion. In addition, the tr

ial court is respe

ctfully6

directed to assess any reasonable costs properly assessable against Husband and Ms. Hay. Fu rthermore, costs in this cause on appeal shall be

assessed jointly a

gainst Husb and and Ms

. Hay, for all of which of the above execution may issue, if necessary.

_________________________________ HEWITT P. TOMLIN, JR. SPECIAL JUDGE CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE