# FILED April 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk LINDA LEE HOLLINGSWORT H, )

) Davidson Circuit Plaintiff/Counter-Defendant/Appellee, ) No. 95D-3419 ) VS. ) ) Appeal No. JAMES DAVID HOLLING SWORTH, ) 01A01-9706-CV-00252

) Defendant/Counter-Plaintiff/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE HONORABLE MURIEL R OBINSON, JUDGE Rose Palermo, BPR #3330 P.O. Box 121857 Nashville, TN 37212 ATTORNEY FOR PLAINTIF F/COUNTER-DEFENDANT/APPELLEE Lucinda E. Smith, BPR #5056 DODSON, PARKER & BEHM, P.C. 306 Gay Street, Suite 400 P.O. Box 198066 Nashville, TN 37219-8066 ATTORNEY FOR DEFENDANT/COUNTER-PLAINTI FF/APPELLANT 

### MODIFIED, AFFIRMED AND REMANDED HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

LINDA LEE HOLLINGSWORT H, )

) Davidson Circuit Plaintiff/Counter-Defendant/Appellee, ) No. 95D-3419 ) VS. ) ) Appeal No. JAMES DAVID HOLLING SWORTH, ) 01A01-9706-CV-00252

) Defendant/Counter-Plaintiff/Appellant. )



## O P I N I O N In this divorce case, the defend ant-co unter claimant husband has appealed from the judgment of the Trial Court dismissing the husband’s counterclaim; granting the wife a divorce on grounds of inappropriate marital conduct, $750 per month alimony until her death or remarriage, and $10,000.00 attorneys fees; and dividing the marital estate. The husband pres

ents the following

issues on appeal: I. The trial court had no jurisdictionto order the sale of real property ti

tled in the name of

Dan Huffst

ut ter, Trustee. II. The div ision of property by the trial court was not equitable. A. The trial court erre d in awardin

g M rs. H ollingsworth

a lump sum in the amo

unt o f $80,500.00. B. T he trial court erre d in declaring a

s marita l prop erty limit

ed partnership investments whic h were no longer

owned by the

parties. C. The trial court erred in assigning to Mr. Hollingsworth’s business the speculative valu e assumed by Mrs. Hollingsworth. D. The trial court erred in charging $69,735.77 to Mr. Hollingswort

h as an asset. E. The result of

t he trial court’s division of assets was not fair and equitable. III. The trial court erre d inawarding Mrs. H

ollingsworth attorney’s fees of $10,000.00.-3- IV. The tr ial court exceeded its authority in awarding a lien against Mr. Hol lings worth’s interest in his father’s estate

and the assets of h

is business. V. Mrs. Holling sworth is not entitle d to attorney

s’ fees o n appeal. The husband is 59 years of age, and the wife is 56 y ears of age. They were married in 1963 and separated May 18, 1995. They have four children, all adults. The husband has a college degree and has held positions of responsibility

with Tennessee V

alley Autho

rity andthe State of Tennesseebefo re starting a pr ivate business. Th

ere is evidence

of his ad diction of

alcohol since the

marriage, of h

is unsuccessful tr

eatment therefo

r and of his mis con duc t to ward his wif e. T he T ria l Ju dge e xpr ess ly di scr edi ted his tes tim ony.
The weight, faith and credit to be given to the testimony of any witne

ss lies with

the trier of fact and gr

eat weight is g

iven on appeal to th

e finding of the t

rier of fact in th

is regard. Doe A. v. Coffee County Board of Education , Tenn. App. 1996, 925 S.W.2d 534.
On an issue which hing

es on the credibil

ity of witnes ses, the trial cou rt will not be reversed unless, other than t he testimony of witnesses, there is found in the record clear, con vin cin g evi den ce t o th e con tra ry. Thompson v. Creswell Indus. Sup., Inc. , Tenn. 1996, 936 S.W.2d 955.
The divorce decree conta ins the fol lowing:

After reviewing the Wife’s Statement of Assets and Liabilities of the Parties, it appears to the Court that the Wife shallbe and shehere by is awarded as he r sole and separa

te property the sum of $80,500.00, which amount represen ts one-half of the value of the

offic e cond ominium located at 1321 Murfreesboro Road, Suites 701 and 705, Nashville, Tennessee, and that the Wife shall be and hereby is awarded a lien against sai

d property.

The legal desc ription for said property is attached here

to as Exhibit B. The Co

urt f urt her finds that said propert

y isheld for the Husba

nd inthe name of DanHuffstutter, Trustee, a nd that the Trustee, Dan Huffstutter, shall be and hereby is made a party to this action for injunctive purpose

s. Until such time as the Wife is paid-4- the sum of $80,500.00 awarded to her herein for her shareof the equity in said real property, the Trustee, Dan Huffstutter, as well as the Husband, James David Hollingsworth, Jr., shall be and they here

byare restrained and enjoined from placing any further liens or

encumbrances upon

said property or from dep let ing t he eq uit y in s aid pro pert y. The property in question w as pu rchased by the husband in 1988. In 1992, the pro pert y was sol d at for ecl osu re s ale to s ati sfy a mortg age in debte dness . It was purchased from the mortgage

holder for $161,0

00.00 by Dan

Huffst ut ter, Trustee. The parties agree thatthe va lue of t he p rop ert y is $ 161 ,00 0.0 0, b ut t he n atu re of the tru st e xer cis ed b y Mr . Huffstutter is unclear.
It appears from the decree that the lien upon the subject property and other properties was for the pur pos e of i nsu rin g the paym ent of t he cash awards to the wife. Trial Court properly decreed a lien and injunction to prevent further incumbrance or sales of any of the husband’s intere

st in any prop

erty until the

payment of s

uch awards.
A divorce court has no power to impound property in which neith er party has an interest, legal or equitable. Culwell v. Culwell , 23 Tenn. App. 389, 133 S.W.2 d 1 009 (1939). However, divorce courts have equitable power over the interest of the parties, legal or e quitable in property even though such interest is not complete and absolute and non parties also have a partial interest in the same property. In such cases the court may act upo n th e in ter est of t he p art y wit hou t pr eju dic ing t he i nte res t ofthe non part y.
The injunction against sale of assets should be expressly limited to the interest of the husband, legal or

equitable in the such assets. The injunctionshould not prevent the sale of interests of third

parties, or the sa

le of properties

subject to the lien i

mposed by the

Court.-5- First Issue SALE OF PROPERT

Y HELD BY TRUSTEE It appears that, after the

entry of the divorce decree, on May 28, 1997, the Trial Court entered an order discharging Dan E. Huffstutter, Trustee, and that no complaint is made of this action of the Trial Court.
The first issue is th

erefore moot.
No merit is found in the husband’s first issue.
Second Issue DIVISION OF MARIT

AL ESTATE The wife filed in the Trial Court a statement of her version of the values of the various properties in the marital estate. The values were accepted by the Trial Court, and the Court assi gned to the w ife the foll owing: Escrow account held by Kemper and Huffstutter ................... approx. $33,000. Funds held by Charles Reason, Attorney ................................ a pprox. $10,000. Bank account in First Union Bank .......................................... amount not stated 1984 Mercedes automobile ..................................................... $ 4,500. Cash from 1321 Murfreesboro Road ...................................... $80,500. The Trial C ourt awarded to the husb and the foll owing: Lexington condominiums, Green Hills limited partnership, Eagle I partnership, Belmont partnership and any other limited partnership, The Hollingsworth Group, and all bank accounts in his own name ....................................................... value not stated Funds in Wheat First Butcher Singer account, withdrawn by husband ................................................................................... $69,735.77 1985 BMW ............................................................................. $ 4,000. 1994 Grand Cherokee ............................................................. $ 6,000. 1983 Grand Am ...................................................................... $ 1,750. Residence at 4915 Franklin Road ........................................... value not stated The foregoing

does not include c

ountless lesser un

valued propertie

s.-6- Trial Co urts have br oad discretion in dividing the marital estate of parties to a divorce. Such dec isions are ent itled to great we ight on appeal.

Randolph v. Randolph , Tenn. 1996, 937 S.W.2d 815.
The fact that a

division may not be equal does not mean that it is not equitable. Word v. Word , Tenn. App. 1996, 937 S.W.2d 931. This Court cannot say from the record on appeal

that the distribution of the marital estate to the parties was inequitable. It is therefore affirmed.
Third Issue ALIMONY The husband insists that the wife does not need alimony. The wife asserts expenses of $3,300.00 per month

, earnings o

f $1,5 67.00 per month and a deficiency of $1,765.00. The Trial Court awarded the wife $750.00 per month.
The husband argues that he is unable to pay $750.00 per month, but

his testimony as to his income was rejected by the Trial Court on grounds of self contradiction and la ck of credibility.
Trial Courts have broad

discretion to

determine the amount and duration of spousal support, and such decision s are entitled to

great weight on appeal

unless they are unsupported by evidence or are contrary to public policies reflected in relevant statutes. TCA § 36-5- 101(d)(1), Wilson v. Moor e , Tenn. App. 1996, 929 S.W.2d 367.
The record does not support the revers al of the discretionary decision of the Trial Judge to grant the wife $750.00 per month.-7- In view of

the legislatively expressed preference for re habilitative alimony, and the statutory power of the courts to modify alim ony for cha

nged circumsta

nces, this Court is reluctant to affirm an awa

rd of alimony

in futuro for life. The present re cord ordinarily supportsthe award of alimony in futuro, but not for

the life of the wif

e without the expres s reservation of the continuing power of the court to modify for g ood cause.
Acco rdi ngly, the judgment of the Trial Court is modified to award alimony in futuro in the amount of $750.00 per month f or a period of te

n years from the date of the original judgment,and subject to incr ease or decre

ase in the discretion of the Court for sufficient change of circumstances, and subject to power of the court to order the continuance of the alimony beyond 10 years for go od cause. In the absence of application for, and gra nt of extension of alimony

beyond 10 y

ears, alimony

will cease at the

end of 10 ye

ars.
Fourth Issue ATTORNEYS FEE The husbandargues that the wife received a cash distribution of marital assets out of which she should

pay her own counsel. However, she should not be required to de

plete the modest capital she received by use for attorney s fees. This record does not sup port a reversalof t he aw ard o f fee s. A tto rney’ s fe es ar e tr eat ed as ali mon y, and ar e within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of erroneous exercise of discretion. Aaron v. Aaron , Tenn. App. 1995, 909 S.W.2d 408.
Fifth Issue LIEN UPON FATHER’S ESTATE In v iew of the evasive and contradictory testimony of the husband, the Trial Court was justified in imposing a lien upon all property of the husband to secure pay ment of the sums he was ordered to

pay by the Trial Court. However, the Trial Court was not justified-8-

in declaring a li

en u pon the ent ire ty ofany p rop ert y in w hic h th e hu sba nd h eld onl y a fractionalinterest. Therefore, the judgment of the Trial Court is modified to impose a lien only upon the legal or equitable interest of the husband in any property including a vested inheritance. See TCA § 36-4-1221(f)(1).
The wife requests that the husband be required to

pay her leg

al expenses on appe

al. This request is granted. On remand, the Trial Court will ascertain and award to the wife reasonable leg

al expenses of this a

ppeal.
The judgment of

the Trial Court is modified as set out in this opinion. As modified, said judgment is affirmed. Costs of this appeal are assessed against the appellant and his sur ety. The cause is rema nded to the Trial Co

urt for entry

of a judgment in c

onformity wi

th this opinion and further proceedings as necessary and pr oper. 

### MODIFIED, AFFIRMED AND REMANDED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIA M C. KOCH, JR., JUDGE