FILED

November 15,

1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

 

CAROLYN LOUISE TAYLOR )

PERKINS, )

)

Plaintiff/Counter-Defendant/ ) Davidson Circuit No. 93D-1577

Appellant, )

)

VS. ) Appeal No. 01A01-9504-CV-00158

)

JOHN BAUMAN PERKINS, JR., )

)

Defendant/Counter-Plaintiff/ )

Appellee. )

APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT L. JACKSON, SPECIAL JUDGE

Mary Ann Reese

Baydoun, Harris & Reese, P.A.

Nashville, Tennessee

Attorney for Appellant

Carol L. Soloman

Nashville, Tennessee

Attorney for Appellee

AFFIRMED AS MODIFIED

ALAN E. HIGHERS, JUDGE

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HEWITT P. TOMLIN, JR., SP. J.

This is a divorce case in which Wife appeals the judgment of the trial court
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regarding, inter alia, the division of marital property and the trial court's allowance of expert

testimony. 

I.

The pertinent facts are as follows. Carolyn Louise Taylor Perkins (hereinafter

"Wife") and John Bauman Perkins, Jr. (hereinafter "Husband"), were married on June 24,

1966. One child, now in her majority, was born of the parties' marriage. During the

marriage, both Husband and Wife worked outside of the home. At the time of the divorce,

the parties owned two businesses: Special Security Services, Inc., a private guard duty and

funeral escort service, and Special Removal Services, which transported dead bodies.

Husband worked at the parties' businesses while Wife worked elsewhere. However, Wife

handled the businesses' payroll and billing requirements from the businesses' inception in

1988 until 1991. 

Husband had several extra-marital affairs throughout the parties' marriage. In

March of 1993, Wife learned that Husband was having an affair with Bobbie Denney. The

parties separated at that time. At the time of trial, Husband was living with Ms. Denney

and her three children. Husband made minor contributions to the Denney household for

food, cleaning, and other household items. Ms. Denney worked for Special Security

Services, without pay, but was given a company car to drive. 

Wife was granted a divorce on the first day of trial after Husband's admission of

adultery. However, the trial court did not divide the marital estate or consider issues of

alimony until almost two months later. At that time, the trial court divided the marital

property as follows. The equity in the marital residence, in the amount of $54,400, was

divided between the parties. The court apportioned Husband's share in the equity as

follows: one half of Husband's portion, or $13,600, was awarded as alimony in solido, one

half was credited against Wife's share in the parties' businesses. The parties retained the

personal property that was in their possession. Wife was awarded 32 shares of General
3

Electric stock. Both parties retained their respective checking, savings and retirement

accounts. Wife was awarded ownership of the parties' life insurance policy; however,

Husband received a credit for his portion of the policy's cash surrender value, which the

court applied both to discretionary costs assessed against Husband and to the marital

estate judgment awarded to Wife. The trial court determined that the combined fair market

value of Special Security Services, Inc. and Special Removal Services was $130,000, or

$65,000 each, which the court divided as follows: Husband was awarded both businesses.

Husband received a credit of $13,600, representing part of his share of the equity in the

marital residence and reducing Wife's share in the value of the businesses to the

judgment amount of $51,400. The court ordered that Husband pay the judgment in

increments of $500, bearing simple annual interest of 6%. The trial court found that Wife

was not entitled to periodic alimony. Wife was awarded $7,500 in attorney fees, and costs

were taxed to Husband. Wife appeals the trial court's decision.

II.

The first issue raised by Wife is whether the trial court erred in allowing the

testimony of Husband's business valuation expert, Gerald LeCroy, when Mr. LeCroy's

name was not on Husband's witness list as required by Rule 22 of the Davidson County

Local Rules of Court. Rule 22 states in pertinent part:

Section 22.01 Required Procedure

At least 72 hours (excluding weekends and holidays) before

the trial of the civil case, opposing counsel shall either meet

face-to-face or shall hold a telephone conference for the

following purposes: (a) to exchange names of witnesses,

including anticipated impeachment or rebuttal witnesses . . ..

Although the trial judge initially stated that counsel could only call witnesses on the Rule

22 list, Mr. LeCroy was permitted to testify over the objection of Wife's counsel. 

In Airline Construction, Inc. v. Barr, 807 S.W.2d 247 (Tenn. App. 1990), the court,
4

referring to its authority to permit testimony when a witnesses' name is not revealed during

discovery, stated:

[The trial judge may] permit the witness to testify, or it may

exclude the testimony, or it may grant a continuance so that

the other side may take the deposition of the witness or

otherwise prepare to meet the testimony. . .. However, when

such omission is willful, knowing or deliberate, an exclusion of

the witnesses' testimony is suggested (emphasis supplied).

In the present case, there is no evidence that Husband's counsel deliberately withheld Mr.

LeCroy's name from Wife's counsel. Furthermore, the record reveals that the trial judge

considered counsel's explanation for not disclosing Mr. LeCroy's name sooner and

determined that his testimony was too important to be excluded. We find no error in the

trial court's allowance of Mr. LeCroy's testimony.

The second issue Wife presents is whether the trial court assigned a proper value

to the business interests of the parties. Two experts testified in this case as to the value

of both Special Security Services, Inc. and Special Removal Services. Although both

experts relied on the valuation guidelines set forth in Blasingame v. American Materials,

Inc., 654 S.W.2d 659 (Tenn. 1983), Wife's expert, Mr. Von Harshman, valued the

businesses at between $235,000 and $255,000, while Mr. LeCroy, Husband's expert,

valued the businesses at $120,000. The parties do not dispute that both businesses were

marital assets. 

Since this case was tried by the court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial

court. Unless the evidence preponderates against the findings, we must affirm, absent

error of law. T.R.A.P. 13(d). 

It is well established that the valuation of an asset is a question of fact, and on

appeal there is a presumption that the trial court's valuation is correct. Wallace v. Wallace,

733 S.W.2d 102, 107 (Tenn. App. 1987); Edwards v. Edwards, 501 S.W.2d 283, 288

(Tenn. App. 1973). The trial court may properly make a valuation that is within the range

of proof submitted. Wallace, 733 S.W.2d at 107. In the present case, the trial judge
5

determined that the value of the businesses was $130,000. After reviewing the testimony

of both experts, we cannot say that the evidence preponderates against the findings of the

trial judge. See Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. App. 1983). Therefore, we

affirm the trial court's decision regarding the value of the parties' businesses. 

Wife's third and fourth issues on appeal concern specific provisions within the trial

court's division of marital property. Wife argues the following: she should have received

a lump sum payment, rather than installments, representing her share of the parties'

businesses; the interest on the judgment should be 10%, rather than 6%; and that a

judgment lien should have been entered to secure Wife's judgment. 

It is a fundamental principle of law that trial courts have broad discretion in dividing

the marital estate, and their decisions are afforded great weight on appeal. Fisher v.

Fisher, 648 S.W.2d 244, 245 (1983). This Court will presume that the findings of the trial

court are correct unless the evidence preponderates otherwise. Barnhill v. Barnhill, 826

S.W.2d 443, 459 (Tenn. App. 1991). In making a division of marital property, the trial

court is required to consider the factors set forth in T.C.A.§ 36-4-121(c) (1991). 

The trial court did not err in allowing Husband to pay the $51,400 judgment

awarded Wife in monthly increments of $500. The record reveals that the parties'

businesses were cash poor and had few assets. Requiring Husband to pay Wife a lump

sum of $51,400 would likely have depleted the businesses' assets. However, after

reviewing T.C.A. § 47-14-121 (1988), we are convinced that the trial court erred in fixing

an annual interest rate of 6% on the judgment. The interest rate to be applied to

judgments, including decrees, is 10% per year. See also Inman v. Inman, 840 S.W.2d

927, 931 (Tenn. App. 1992). In Bedwell v. Bedwell, 774 S.W.2d 953, 956 (Tenn. App.

1989), the court stated: "[t]he language [in T.C.A. § 47-14-121] is mandatory and it is

generally held the rate of interest prescribed by statute is deemed controlling and is not

subject to reduction by reason of equitable considerations." Based on the foregoing, we

hereby modify the trial court's final decree consistent with T.C.A. § 47-14-121. 
6

Wife contends that this Court should place a lien on Husband's property to secure

the $51,400 judgment awarded to Wife. It is unclear why the trial court did not secure

Wife's judgment with a lien, and Wife's counsel makes no suggestion as to what property

this Court should encumber for security. Because the trial court awarded Wife

substantially all of the parties' real property, and because the remedies set forth in T.C.A.

§ 25-5-101 (1994) remain available to Wife, we decline to modify the trial court's decree

by ordering that a judgment lien be placed on Husband's property. 

Wife's fifth issue on appeal is whether Wife is entitled to periodic alimony. In Hall

v. Hall, 772 S.W.2d 432, 440-41 (Tenn. App. 1989), the court stated that "[t]he amount of

alimony to be allowed in any case is a matter for the discretion of the trial court in view of

the particular circumstances, and appellate courts are disinclined to review that discretion

except where its use is clearly erroneous" (citing Ingram v. Ingram, 721 S.W.2d 262

(Tenn. App. 1986)). In Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993), the court

stated "[t]he trial court's decision [regarding alimony awards] is factually driven and requires

a balancing of the factors listed in T.C.A. § 36-5-101(d) . . ..Of these factors, need and the

ability to pay are the most critical" (citations omitted). In the instant case, the trial court

denied Wife periodic alimony based on the fact that Wife was forty-five years old, gainfully

employed, and earning approximately the same income as Husband. The lower court also

found that its alimony in solido award to Wife offset Wife's need for periodic alimony. After

reviewing the factors set forth in T.C.A. § 36-5-101, we conclude that the trial court did not

abuse its discretion in declining to award Wife periodic alimony.

Wife's sixth issue on appeal is whether Wife should be awarded her attorney's fees

and costs, both below and on appeal. Although this case does not involve a large marital

estate, Wife has incurred in excess of $15,000 in attorney's fees, of which the trial court

ordered Husband to pay $7,500. Additionally, the discretionary costs and expenses in this

matter are $5,268.44, which the lower court ordered Husband to pay. 

This Court stated in Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn.
7

App.1992) that

[t]he decision to award attorney's fees to a party in a divorce

proceeding and the amount thereof, are largely within the trial

court's discretion and will not be disturbed upon appeal unless

the evidence preponderates against such a decision. Batson

v. Batson, 769 S.W.2d 849, 862 (Tenn. App. 1988); Lyon v.

Lyon, 765 S.W.2d 759, 762-63 (Tenn. App. 1988) . . .. In

Baggett v. Baggett, 512 S.W.2d 292, 294 (Tenn. App. 1973),

this Court held that an award of attorney's fees was

inappropriate where both parties are partially successfully [sic]

on appeal. 

We do not find that the evidence preponderates against the trial judge's award of either

attorney's fees or costs. Accordingly, we decline to grant Wife an additional award.

The seventh and final issue Wife presents for this Court's review is whether the

nunc pro tunc order should be set aside. This cause initially came to be heard on May 16,

1994. On that date, the trial court granted the parties a divorce based on Husband's

admission of adultery, reserving consideration of alimony and division of marital property

until a later date. The trial court asked Wife's counsel to draw up an order granting the

parties a divorce as of May 16, 1994. For reasons that are unclear to us, Wife's counsel

failed to enter an order. When the court reconvened on July 13, 1994, it entered an order

nunc pro tunc granting Wife a divorce effective May 16, 1994. 

The purpose of an order nunc pro tunc is to make effective now what should have

been done earlier, giving full force and effect to the thing, as if done at the earlier date.

See Blacks's Law Dictionary 1069 (6th ed. 1990). In the present case, the trial court

granted the parties an absolute divorce on May 16, 1994. Wife's counsel offers no reason

for her failure to promptly enter the order of divorce as the trial court requested, and we

find no merit in counsel's argument that the nunc pro tunc order violates the interests of

justice. Accordingly, we decline to set the order aside. 

Based on the foregoing, the decision of the trial court is affirmed as modified. Costs

on appeal are taxed to both parties equally. 
8

 

HIGHERS, J.

CONCUR:

 

CRAWFORD, P.J., W.S.

 

TOMLIN, SP. J.