# FILED

Novemb er 1, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk

SUSAN KA Y PILGER RIGG S, ) ) Plaintiff/Appellant, ) ) Davidson Cir

cuit ) No. 91D-2188 VS. ) ) Appeal No. ) 01A01-9601-CV-00007 JAMES LAND RY RIGG S, ) ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEAL FROM THE DAVIDSON CIRCUIT COURT

AT NASHVILL E, TENNESSEE
HONORABL E MURIEL RO BINSON, J UDGE Fred C.Dance, #7004 DANCE, DANCE & LANE 3200 West End Avenue, Suite 101 Nashville, Tennessee 37203 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT David I. Komisar, #9207 211 Printer’s Alley B uilding Suite 400 Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPEL LEE 

### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

SUSAN KA Y PILGER RIGG S, ) ) Plaintiff/Appellant, ) ) Davidson Cir

cuit ) No. 91D-2188 VS. ) ) Appeal No. ) 01A01-9601-CV-00007 JAMES LAND RY RIGG S, ) ) Defendant/Appellee. )


### O P I N I O N

The plaintiff/wife has appealed from the judgment of the Trial Court declaring the parties divorcedpu rs ua nt to T. C. A. § 3 6- 4- 12 9, pl ac in g c hi ld cu st od y in the wife and awarding child support. T

he issueson appea

l relate only to support .

The parties wer e married on March 15, 1985. One child, a son, was born on Ma y 15, 1985. On June 7, 1991, the wife sued for divorce, pray ing for the usual relief, and in addition, enforcement of pendente lite support ordere d in a previous divorce suit which was dismissed.

On Ju ly 25, 19 91, t he Tri al Cou rt ent ered an order c ontai ning t he fol lowi ng: At the conclusion of the hearing, having c onsidered the testimony of the parties and the entire record in the cause, the Court f

inds that a

n emerg ency

financi al situati on exists, and that the Complainant, Susan Kay Pilge r Riggs, and the minor chil d of the pa

rties, Jamie

Riggs, are ent

itled to ch ild support and alimony pendente lite pending further orders of the Court. The Court finds that the Complainant, Susan Kay Pilge r Riggs, lacks the

present ability to earn i ncome wh

ich would support herself and the minor child at this time. Accord ingly , the Cour

t ORDERS tha

t the Respo ndent, Jame s Landry Riggs , imm ediat ely pay the J une mo rtgage payment and late

fees representing the indebtedne ss known as the first mortgage on the par ties’ home place located at 909 Oak Valley

Lane, Nashville, Tennessee. The Respondent is further ORDERED to make pay ment of $1,263.00 no later than 5:00 p.m. Monday, July 15, 1991 to the mort

gage company

to pay the mortg age pa

yme nt-3- due for t he month of

July, 1991, and

to pay to Susan Rig gs the sum of $237.00 for a total July obligation of $1,500.00. The Respondent’s obligation to make the mortgag e pay ments des cribed h

ereina bove sha ll include any late fee s which may have

resulted from the untimely pa yment of the sums due in June and July of 1991. Thereafter, beginning the month of August, the Respondent shall and is ORDERED to pay direc t to Susan Kay Pilger Ri ggs the sum of $1 ,500.00 pe r month. Sa

id pa yme nt sh al l b e d ue an d p aya bl e n o l at er th an th e 5 th da y of each month and from said pay ment, Susan Kay Pilger Riggs, is ORDERED

to pay on a timely

basis the

first mortgage indebtedness and utility charges accruing

on the parties’ home place. Pending further orders of the Court, and in addition to the $1,500.00 cash pay able to the Complainant, the Respondent shall maintain health insurance coverag e on Mrs. Rigg s and the m

inor child

and pay any and all uncovered hospital, medical, doctor or dental expenses pending a final hearing in this cause
.

- - - It is th e finding of the Cou

rt that all of the payments a nd obligat ions set ou

t herein above a

re in the nature o f support of the parties’ minor child and the Complainant . (Emphas is supplied.) On November 17, 1994, a petition for contempt was filed in this case on behalf of the wife alleging $36,531.29 delinquency in the $1,500 per month support and failure to provide insurance as ordered.
On January 18, 1995, the wife f iled an amended complaint for absolute divorce.

On Januar

y 25 , 1995, an

order w as enter

ed by the Tria l Court def

erring indefinit ely action upon the contempt petition filed November 17, 1994.
On April 7 , 1995, the

wife filed an amended petit ion for c ontempt a

lleging specific unpaid insurance and medical expenses and accumulate d unpaid support of $36,531.19, and pr ayi ng fo r s en te nc e for co nt em pt , j ud ge me nt fo r a rr ea rs , l ie n, wa ge as si gn me nt an d a tt or ne ys fees.-4- On April 12, 1995, the husband moved for reduction of support pay ments.
On Apr il 20 , 1995 , the T rial C ourt e ntered an ord er prov idin g: IT I S THEREFORE ORDERED, ADJUDGED AND DECREED th at the Ame nded Petit

ion for Con

tempt shall be dismissed and that no arrearage sha ll be awarded Wife
. (Emphasis supplied.) The cause was heard on its merits on July 5 & 6, 1995, and, on August 1, 1995, the Tr ial C ourt e ntered an ord er sta ting:

Upon testimony of the parties, their witnesses, consideration of their exhibits and the entire record herein, the court finds as follows: This case has been in a state of confusion since 1989. The problem isthat Mrs. R

iggs ma rried Mr . Riggswhen he w as in debt, and her expectations and her demands are unr ealistic, which is not to say

that Mr. Ri ggs’ are too. But it is no t as complica ted as it seems. This m arriag e virtua lly h as no asse

ts, but it is a marriage of two professional people that ca n work. The court further finds that both are capa ble of making their own way since

they are both licensed real estate agents and have been that way

for some time. The cour

t declar es the pa

rties divo

rced pur suant to T.C.A. §36 -4-129 in

that both parties have grounds for divorce against the other. The cour

t further finds tha

t Mrs. Riggs is capable of rehabilitation and reesta

blishing herself in the re al estate

world
. The cour

t finds tha

t there isno eviden

ce that s he is in ca pa ci ta te d i n a nyw ay h ea lt hw is e, an d r eh ab il it at iv e a li mo ny for one ye ar is necessary

and that will be payment of $500.00 plus her TennCare insurance premium eac h month for 12 months. The first payment for the alimony and health ca

re insurance premium pursuant to this final decree will be due for the month of August 1995 and the responsibility f or the rehabilitative alimony and Te nnCare insurance will cease with the payments due July

1996. It is, therefore, ORDERED, AD JUDGED, and DECREED that the parties are declared divorced pursuant to TCA § 36- 4-129 and each is restored to all the privilege s of an unmarried person. It is further ORDERED that child support shall be set in the amount of

$520.00 pe

r month plu s the cle

rk’s law ful commission of $26.00 beginning August 5, 1995 by wage assignment.-5- It i s f

ur th er OR DE RE D t ha t J am es Ri ggs wi ll pa y rehabilitative alimony to Susan Rigg s in the amount of $500.00 plus her TennCare insurance premium eac h month for 12 months. The first payment for the alimony and health ca

re insurance premium pursuant to this final decree will be due for the month of August 1995 on August 5, 1995 and the five hundred dollar a limony pay ment will be

by w age a ssignme

nt and the responsibility for the rehabilitative alimony and TennCare insurance will cease with the pay ments due July 5, 1996. After that, any

health insurance premium will be the responsi bility of Mrs. Rig gs. It is f urther O RDERED tha

t James Rig gs will be

responsi ble for the second mortgage on the property loc ated at 909 Oak Valley Lane as alimony which is necessa ry for the suppor

t of the wife and the child

and will be nondischargeable in bankruptcy. Mr. Rig gs will pay the second mortgage in a timely fashion. (Emphasis supplied.)

From the foreg oing judg

ment, the wife hasappeale d and pre sented f ive issue s.

ISSUE I Did the trial court err in forgiving a n arrearage in The support payments orde red paid to the Wife? ISSUE II Did the trial court abuse its discretion in forgiving the arrearage in support pa yments ordere d paid to the Wife?
These two issues complain of the single sentence of the June 1, 1995, order quoted above, which dismissed the amended petition for contempt and denied an aw ard for
arrea rage. No other

wording of the or der indic ates a “ forgiv eness” o f court o rdered support.
T.C.A. § 36 -5-101( a)(5) does forb id retroa ctive re duction or

“forg iveness”of child support. H owever , the wife fails to c ite and th

is Court ha s been un able to f ind any concre te indication in any order

of the Trial Court that any c hild support was retroactively reduced or forgiven.-6- As indicated above, child support was not awarded sepa rately fr om “wife support.” The required pay

ments were designated support for wife and child. The record does not reflect any

designation of any

specified part of the “support” as child support. I t is therefore impossible for this Court to ascertain what part of the “support,” if any , was forgiven.

The varied and confusing relationship of the pa rties during the extended lapses in proceedings in this case creates unc ertainty as to the re ason or reasons why no judgment was awarded for arre ars support. For a part of the time, the wife stipulated that support payments wer

e received. Other parts of the time lapse w ere periods when the parties were living together and the husband was bea ring the expenses of the household.

In itsconvoluted state, th e evidence does not support a judgme nt for ar rears s upport.

ISSUE III - AMOUNT OF ALIMONY
In its final judgment, quoted above, the T rial Court awarded the wife $500.00 per month rehabilitative alimony a nd health care insurance for one y ear only. How ever, the same judg

ment req uires the husband to

pay a second mortga ge “a s alimony

which is necessary for the support of the wife and child.” The wife te stified that the original amount of the se cond mort

gage was $30,0 00, but no e

vidence is cited or

found as t

o the unpa

id balance or terms of pay

ments. The record leaves considerable unc ertainty as to the a mount
an d d ur at io n o f a li mo ny.
Equally uncer

tain are the facts concerning the needs of the wife, her ability to earn money and the a

bility of the husband to pay . The evidence was sharply in conflict, and the Trial Judge evaluated credibility in reaching conclusions above quoted.-7- Any conflict in the testimony of witnesses requiring a determination of credibility of witnesses is for the Trial Court and binding on the appellate court unless other real evidence compels a contrary

conclusion. State ex

rel Balsin

ger v. Town

of Madison ville , 222 Tenn. 272, 435 S.W.2d 803 (1968). No such real evidence is cited or found to compel a conc lusion contrary to that of the Trial Judge. The evidence does not preponder ate otherwise.

In the state of the rec ord, this Court finds the third issue presents no ground for
revers al.

ISSUE IV AND V - CHILD SUP PORT GU

IDELINES
At the conclusion of the trial, the following occurred; THE COURT: sofar as the child support is concerned, the Court will set the amount of $52 0.00 per month. BY MR. JABLONSKI : Your Honor please, and I am sorry - - I disagr ee with hi s figur

e. He te stified th at so far this year he had made $34,000.00 including - - or $37,000.00 including a gift, take that gift out he ha s made $27,000.00 and that i s based on

a $54,000 .00 y ear, I

would ca lculate child support at $682.00. THE COURT: Okay. I have calculated it and I think $520.00 is a more accurate figure . $520.000 per month plus the child’s Tenn Care premium, plus all bills not covered by the Tenn Care

insurance. If y

ou add that up, he will be over what you sug gested. That takes care of the child.

It is seen that counsel for the wife computed support due under the guidelines at $682.00, a

nd the Tri al Judge f

ound that $ 520.00 ca sh plus hea th expense s would amo

unt to as much as $682.00.

In order to reve

rse this finding, evidence is necessary to show the error in the finding. Such evidence is not cited, and this Court is not under a duty to search the record for uncited-8-

evidenc e. Rule 6, Rules of th is Court; Alexander v. Tenn. Farmers Mut. Ins. Co. , Tenn. App. 1995, 905 S.W.2d 177.
No reversible error is presented by issues IV and V.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appella nt. The c ause is r

emanded to the Tri al Court f

or further nece ssary

procee dings. 

### AFFIRMED A ND REMAND ED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE