# FILED November 1 5, 1995 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
CA ROLYN L OUISE TA YLOR ) PERKINS, ) ) Plaintiff/Counter- Defendant/ ) Dav idson Circu it No. 93D -1577 Appellant, ) ) VS. ) A ppeal No. 01A 01-9504-CV-001 58 ) JOHN BA UMA N PERKINS, JR., ) ) Defe ndan t/C ount er- Plai ntiff/ ) Appellee. )
APPEAL FROM THE CI RCUI T COUR T OF DA VIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE ROBERT L. JAC KSON, SPECIAL JUDGE
Mary An n Reese Ba ydo un , H ar ri s & Re es e, P. A. Nashvil le, Tennessee Attorney for Appellant

Carol L. So loman Nashvil le, Tennessee Attorney for Appellee

AF FIRMED A

S MODIFIED

AL AN E. HIGHERS , JUDGE
CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. HEWITT P. TO MLIN, JR., SP. J.

This is a d ivorce ca se in which Wif e appeals the judgment of the trial court2

regardin g, inter alia , the divi sion of marital prop erty and thetrial court's allowance of expert testimony.

I.

Th e pertine nt facts are as foll ows. Car olyn Louis e Taylor Per kins (herei nafter "Wife") and John Bauman Perkins, Jr. (hereinafter "H usband"), we re married on June 24, 1966. One child, n owin her majority , was bor n of the parties' marriage. During th e marriage, both Husband and Wife worked outside of the home. A t the time of the div

orce, the parties owned two businesses: Special Secur ity Service s, Inc., a pr ivate gu ard duty and funeral escort ser

vice, and S pecial Removal Servi ces, whi ch transported d e ad bodies. Husband wor ked at thepar ties ' bus ines ses whi le Wife work ed el sew here . Ho wever, Wife handled the businesses' payroll and billing requirement s from the businesses' inception in 1988 until 1991.

Husband had several extra-mar ital affairs thr oughout the part ies' marri age. In March of 1993, Wife learned that Husband was having an affair with Bobbie Denney . The parti es sepa rated at that time. At thetime of trial, H usband was l iving with Ms . Denney and her three chi ldren. Husband made minor contribution s to the Denney household for f ood , cleaning, and other household items. Ms. Denney worked for Special Security Services , without pay, but was given a company car to drive

.
Wife was gr

anted a divorce on the first d ayof tr ial after Husba nd's admission of adu ltery. However, the trial court did not divide th e marital estate or consider issues of alimony until almost two months l ater. At that t ime, the tri al court div ided the marital property as follows. Th e equity in the marital residence, i n the amount of $54,400, was divided between the par ties. The court

apportioned Hus ba n d's share in the equity as follows: one h alf of Hu sban d's p ortio n, or $13, 600 , was a warde d as a limo ny in solido , one half was credited agains t Wife's share in the parties ' businesses. The parties retained the personal property that was i n their posses sion. Wife was awarded 32 shares of Gener al3

Electric stock. Both p arties retai ned their res pective ch ecking, sa vings and retirement accounts. Wife was awarded ow nership of the par ties' life i nsurance poli cy; h owever , Husband received a credit for his portion of the po licy's cash surrend er value, which the court applied both to discre tionary co sts assessed against Hus band and to the mari tal estate judgmentawarded to W ife. The trial court determined that t he combined fair mar ket value of Special Secur ity Serv ices, Inc. and Special Remov al Servi ces was $1 30,000, or $65,000 each, whi ch the court div ided as follows: Husband was awarded both businesses. Husband received a credit of $13,600, repre senting part of his share of the eq uity in t he marital residence and r educing Wife's share in thevalue of the bus inesses to the judgmentamount of $51 ,400. The court ordere d that Hus band pay the judgment in increments of $500, bearing simple annual i nterest of 6%. The t ria l co urt found that

Wife
was not entitled to periodic alimony. Wife was awarded $7,500 i n attorney fees, and costs were taxed to Husband. Wife appeals the tri al court's decision.

II.

Th e first is sue raised by Wife is whether the tri al court err ed in allow ing the testimony

of Husband's busi ness valuat ion e xpert, Gerald LeCroy, when Mr. LeCroy's
name was not on Husband's w itness lis t as requi red by Rul e 22 o f t he Davidso n County Local Rules of Court. Rule22 states in pe rtinent part:

Section 22.01 Required Procedu re At least 72 hours (excluding weekends a nd hol idays) before the trial of the civil case, opposing co unsel shall either meet face- to- fa ce or shall hol d a telephone conferenc e for the following purposes: (a) to exchange names of witnesses, including anticipated impea chment or rebutta l witnes ses . . .. Although the trial judge initially stated that couns el could only call w itnesses on theRule 22 list, Mr . LeCroy was permit ted to testify

over the obj ection 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 reveal ed during discover y, stated: [The trial judg e may ] permit the w itness to test ify, or it may exclude the testimony , or it may grant a cont inuance so that the oth er side may take the deposition of the witness or otherwise prepare to meet t he testimony.

. .. Ho we ver, w hen such omission is willful , knowing or deliberate, an exclusi on of the wi tnes ses' test imon y is suggested ( emphasis supplied). In the present case, there is no evidence that Husband's coun sel deliberately withheld Mr. LeCroy's name from Wife's counsel. Further more, the record reveals that th e trial jud ge considered counsel's ex planation for not di sclosing Mr. LeC ro y's name soone r and determined that his testimony w as too important to be exclud ed. We find no error in the trial cour t's a llowa nce o f Mr. LeCro y's te stim ony.

The second issue Wife presents is whether t he trial cour t 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 Serv ices. Although both
e xp erts relied on the valuation g uidelines set forth in Blasingame v. American Materials, Inc. , 654 S.W .2d 659 (T enn. 1983) , Wife's expert, Mr. Von Harshman, valued the businessesat between $235,000 an d $255,000, whil e Mr. LeCr oy, Husband' s expert, valued the businesses

at $120,000. The part ies do notdispute that both businesseswere marital asset s.

Since this c ase was tr ied by the court sittin g with out a jury, we rev iew the ca se de
novo upon the record with a presumption of correctn ess of the findings of fact by the tri al court. Unless the evid ence preponderates ag ainst the finding s, we must affirm, absent error of law . T.R.A.P. 13(d ).

It is wel l establishe d th at the v aluation of an asset is a quest ion of fact, and on appeal there is a pr

esumption that

the trial court's valuation is correct. W allace 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 valuat ion that is w ithin the range of proof sub mitted. W allace , 733 S.W.2d at 107. In the present case, the trial judg e5

determined that the val ue of the businesses was $130,000. After revi ewing t he testimony of both exper ts, we cannot say that the evi dence preponderates against thefindings of the trial judge. See Hardin v. Hardin , 689 S.W .2d 1 52, 1 54 (T enn . App . 198 3). T here for e, we affirm the trial court's decis ion regard ing the value of the parties ' businesses.

W ife's third and fourth issues on ap peal concern specific prov isions w ithin the trial court's divisi on of marital prope rty. W ife argue s the foll owing: she sh ould have received
a lump sum pa ym ent, rather than installmen ts, representing her share of the pa rties' businesses; the i nt erest on the ju dgment should be 10%, rather tha n 6%; and that a judgment lien should have been entered to sec ure Wife's judgment.

It is a fundament al principle of law that t rial court s have broad discretion in divid ing the marital estat e, and their dec isions are afforde d great w eight on appeal

. Fishe r v. Fisher , 648 S.W.2d 244, 245 (1983). This Court wi ll presume that the findings of thetrial court are correc

t unless the ev idence preponderates otherw ise. B arnhill v. Barnhill , 826 S.W.2 d 443, 459 (Tenn. App. 1 991). In makin g a divi sion of marital property, the tria l court is required to consider the factor s set forth in T.C .A.§ 36-4-121( c) (1991).

The trial cour

t did not err

in allow ing Husband to pay the $51, 400 judgment
aw arded Wife in monthly increments of $500. The record reveals that the p arties ' businesseswere cash poor an d had few asset s. Re quir ing H usband to pay Wife a lump
sum of $51,400 would likely have depleted the businesse s' assets. H owever , after review ing T.C.A. § 47-14- 121 (1988), we are convi nced that the tri al court er red in fixing
an annual interes t rate of 6% on the judgment. The i nterest rate t o be applied to judgmen ts, includi ng 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 (Ten n. App. 1989), the court stat ed: "[t]he lang uage [in T.C.A . § 47 -14-121] is mandatory and it is generallyheld the rate of intere st prescrib ed by statute is deemed control ling and i s not subject to reduction by reason of equitable cons iderations." Based on the fore going , we hereby modify

the trial court's final dec ree consisten t 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 W ife. It is uncl ear why the trial court did not secure W ife's judgment w ith a lien, and Wife's counsel makes no sugg estion as to w hat property this Court should encumber f or se curit y. Beca use t he tr ial cour t aw arde d Wife substantially all of the parties' real propert y, and becausethe remedies set for th in T.C.A. § 2 5 - 5 - 1 0 1 ( 1 9 9 4 ) r e m a i n a v a i l a b l e t o Wi f e, we decl ine to modify thetrial cour t's decree by orderi ng that a judg ment lien be plac ed on Husband's p roperty.

W ife's fifth issue on appeal is whethe r Wife is entitled to periodic al imony. In Hall
v. Hall , 772 S.W.2d 432, 440-41 (Tenn. A pp. 1989), the cour t 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 app ellate courts are disincli ned to revi ew that discretion exceptwhere it s use is cle arly e rroneou s" (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
s tated "[t]he trial court's dec ision [reg arding ali mony awar ds] is factuall y driven and requir es a balancing o f the factors lis ted in T.C.A. § 36-5-101(d) . . ..Of these factor s, need and the ability to pay are the most critical" (citations omitted). In th e instant ca se, th e trial court denied Wife periodic alimony based on th e fac t that Wife was forty-five years old, gainfully employed, and earning approximatel y the same in come as Husband. Thelower court also found that its al imon y in solido award to Wife offset Wife's need for periodic alimony

. After review ing the factors set forth in T.C.A. § 36-5-101, w e conclude that t he trial cour t did not abu se its discr etio n in d eclin ing to award W ife perio dic a limo ny.

W ife's sixth iss ue on appe al i s w heth er Wife should be awarded her attor ney's fees and costs, both bel ow and on appeal

. Althou gh this cas e does n ot involve a large marital estate, Wife has incurred in exc ess of $1 5,000 in attorney's fees, of which the trial court ordered Husband to pay $7,500. Addition ally, the discretionarycosts and expenses in this matter are $5,268.4 4, which t he lower court ordered Husband to pay

.

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

App.1992) that

[t]he decision to aw ard attorn ey's fees to a party in a divorce proceeding and the amount the reof, are largely within the trial court's discretion and will not be disturbed upon appe al 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 75 9 , 762-63 (Tenn. App. 1988) . . .. In Baggett v . Baggett , 512 S.W.2d 292, 294 (Tenn. App. 197 3), this Court held that an award of attor ney's fees was inappropriatewhere both parties are partially successfully [sic] on appeal. We do not find that the ev idence preponderates against the t rial ju dge's award of either attorney's

fees or costs. According ly, w e decline to g rant Wife an additional awar d.

The seventh and final issue W ife prese nts for this Court's review is whether the
nunc pro tunc order should be set aside. This cause in itially came to be heard on May 16, 1994. On that date, the trial court grant ed the parties a divorce based on Husban d's admission of adultery, reservi ng consider ation of alimony

and divis ion of marital property until a later da te. The trial cour t asked W ife's co unsel to draw up an o rder gr anting t he parties a divorc e as of May 16, 1994. For reasons that are u nclear to us, Wife's counsel failed to enter an ord er. When the court reconvened on Jul y 13, 1994, i t entered an order nunc pro tunc

granting Wife a divorce effective May 16, 1994.

The purpose ofan order nunc pro tunc is to make effective now what s hou ld ha ve been done earlier, giv ing full fo rce and effect to the thi ng, as if done at the earlier date. See Blacks's Law Dictionary 1069 (6th ed. 1990). In the present ca se, the trial court granted the parties an absolute divorce on May 16, 19 94. Wife's counsel offers no reason forher failu re to prom ptly e nter the o rder of d ivorce as th e tria l cou rt requ este d, an d we find no merit in counsel's arg ument that the nunc pro tunc order vi olates the inter ests of justice. Ac cordingly , we decli ne to set the ord er aside.

Based on the foregoing, the decision of the trial court is affirmed as modified. Costs on appeal are taxed to both partie s equally

.8 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

TOMLIN, SP. J.