# FILED
December 30, 1997 Cecil W. Crowson Appellate Court Clerk JOE LARRY TURNBO, ) ) Wayne Chancery Plaintiff/Appellant, ) No. 8490 ) VS. ) ) Appeal No. BRENDA JANE (THOMPSON) TURNBO,) 01A01-9307-CH-00314 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE
APPEAL FROM

THE CHANCERY COURT OF WAYNE COUNTY, TENN ESSEE AT WAYNESBORO HONORABLE JIM T. H AMILTON, JUDGE
MICHAEL W. BINKL

EY 150 Second Avenue, N. Suite 300 Nashville, Tennessee 37219 ATTORNEY ON APPEAL FOR PLAINTI FF/APPELLANT DENNIS PLUNK 404 W. Main Street Savannah, Tennessee 38372 ATTORNEY AT TRIAL FOR PLAI NTIFF/APPELLANT CLAUDIA

S. JACK Jac k & J ack, Att orn eys 22 Public Square Columbia, Tennessee 38402-0827 ATTORNEYS FOR DEFENDANT/APPELLEE THOMA S W. H ARDIN 102 W. 7th Street Columbia, Tennessee 38402 ATTORNEYS FOR DEFENDANT/APPELLEE AFFIRMED AND REMANDED.

HENRY F. TODD, PRESIDING JUDGE CONCUR: SAMUEL L. LEWIS, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

JOE LARRY TURNBO, ) ) Wayne Chancery Plaintiff/Appellant, ) No. 8490 ) VS. ) ) Appeal No. BRENDA JANE (THOMPSON) TURNBO,) 01A01-9307-CH-00314 ) Defendant/Appellee. )



## OPINION

The husband appealed from a judgment granting to the wife an absolute divorce , alimony in futuro, and division of marital property. The husband also complains of the refusal of the Trial Judge to recuse h

imself because o

f alleged impro

prieties.
After briefing

and oral argum

ent, this Court dete

rmined that the re

cord was inadequ

ate to resolve the recusal issue and remanded for a full airing of the facts supporting the charges of impropriety

and whether any

improper conduc

t affected the ju

dgment.
The procedure on remand did not result in a full airing of the issues stated in the remand or a record fro

m which said issues m

ight be justly

resolved by

this Court.
The supple mental bri ef of the hus band compl ains of vari ous rulings of the Trial Judge regarding discovery in prepara tion for the evidentiary hearing on remand. However , during the second argument before this Court, counsel for the husband conceded that the discovery related only to recusal and would have produced no evidence rele vant to the correctness of the judgment rendered by the Trial Court. Moreover, counsel for both parties a greed that all evidence relevant to the merits of the appeal is present in the record.-3- Since the record is adequate for review de novo and decision by this Court upon the merits of the case

, this Court has dete

rmined to foreg

o a resolution of th

e issues of impropr

iety and leave them fo

r resolution by

tribunals specia

lly charg ed with that respon

sibility. This procedure was proposed during oral argument and no objection was voiced by counsel.
Upon appeal from a non jury judgment, the findings of fact a nd law of the trial judge are reviewed by this Court de novo u pon the record T.R.A.P. Rule 13(d). N.C.N.B. Union Carbide Corporation v. Huddleston , Tenn. 1993, 854 S.W.2d 87; National Bank v. Thra ilkill, Tenn. App. 1993, 856 S.W.2d 150.
The husband presents an issue as to the division of marital property. The Trial Court awarded the w ife propert y valued by the husb and at $60, 150 and cash of $185,00 0, making a total of $245,150. Husband has filed a statement of marital property in compliance with Rule 15 of the Rules of this Court which is appended to this opinion as Exhibit A. The wife has not filed a counter-statement, but does discuss certain controverted items, particularly the husba nd’s business, Turnbo Express. The husband valued his business at minus $151,803. His accountant stated its book value was $337,000 and that it had an annual income of $402,000. The husband had submitted a financial statement to a bank stating the value of the business as $500,000. The finding of the Trial Court that the business was worth $305,330 was clearly within the scope of the evidence on t

he subject and is a

pproved by t

his Court.
According to values stated by husband on his Rule 15 Table, of the assets other than the business, $68,078 w

as assigned to the

wife, and $61,532

was assigned to t

he husband. This division is approximately equal, slightly favoring the wife.
The husband argues that debts should be considered in division of the estate, but most of the debts cited are debts of the business or lien indebtedness against other assets which reduced-4-

their value used as stated on the Rule 15 Table. Moreover, the gross disparity be tween the income of the husband and wife is justification for placing the debt-paying burden on the husband.
Husband argues that the marital estate was accumulated through his efforts, but it was accumulated during the marriage when the wife was caring for home and children which justifies her interest in the accumulation. T.C.A. § 36-4-121(c).
The husband’s third, and last issue complains of the award of $1,500 per month alimony in futuro.

The wife testified: Q. Ms. Turnbo, I’ve handed y ou a copy of

your affid

avit of income and expe

nses. To the best of

your knowle

dge is this a true and accurate reflection of what your income and expenses is at the current time? A. Yes, ma’am. Q. Do you feel that you are ope rating on enough income now? A. No. Q. Does this income an d expense affidav

it reflect what you have been forced to live with since the separation in 1989? A. Yes. Q. And is this statemen t of assets and liab

ilities correct to the best of your knowledge? A. Yes. Q. Ms. Turnbo, realizing that you have reflected y our current status on this income and expenses, what do you think it would take for you to live on right now if you we re able to pick out a figure

that would allow y

ou to live comforta

bly as you did before the separation? What amount do you think? A. Two thousand.-5- Q. A month? A. Uh-huh. There was no cross examination regarding this testimony except her admission of $240 per month wages

and $500 per month c

hild support. She wa

s not asked what she

would need to maintain herself and child, hence the child support is not a suitable credit against the stated $2,00 0 need . The $ 240 pe r mont h earn ings m ight b e a pro per cr edit a gains t the $ 2,000 need. If so, the proven monthly need of the wife is $1,760.
The wife’s Sworn Statement of Income and Expenses indicates a lesser need than $1,760 per month, but the wife explained that, during the divorce proceedings she was obliged to live on
a mu ch l owe r st and ard t han prev iou sly.

The husband insists

that his income is ina

dequate to pay

the required ali

mony, but his stated salary

from his business is n

ot his only inc

ome, and his extensiv

e spending for l

uxuries bel ies his ple a of p ove rty.
The amount of alimony rests within the sound discretion of the Trial Court which will not be disturbed on appeal in the absence of a clear showing of erroneous exercise of that discretion. Abney v. Abney , 61 Tenn. App. 531, 456 S.W.2d 364 (1970); Crouch v. Crouch , 53 Tenn. App. 594, 385 S.W.2d 288 (1970).-6- The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the husband. The cau

se is remanded to t

he Trial Court for

appropriate fur

ther proceeding

s.

AFFIRMED AND REMANDED.

__________________________________ HENRY F. TODD, PRESIDING JUDGE

CONCUR:

______________________________ SAMUEL L. LEWIS, JUDGE

______________________________ WILLIA M C. KOCH, JR., JUDGE