1 The record indicates that, although Ms. Fann filed a counter- cla im i n this ac

tion, s he later dismisse

d the counter -comp laint at trial.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON February 20, 2001 S ession WILLIAM EDWARD FANN v. ANNETTE OLA FANN A Direct Appeal from the Chancery Court for Carroll County No. 99-DR-59 The Honorable Ron E. Harmon, Chancellor

No. W2000-02431-COA-R3-CV - Filed April 18, 2001

Husband sued for divorce, alleging inappropriate marital conduct. Wife filed an answer and counter-compla

int, but later dismissed the counter-complaint and chose to conte

st the divorce. Trial court granted divorc

e to husband. Wife a

ppeals, allegin

g that the trial c

ourt abused its disc

retion in granting the divorce on grounds of ina ppro priate marital c

onduct without evid

ence to corrobo

rate husband’s allegations and that husband had faile

d to carry h

is burden of proving cruel and inhuman treatment. We aff

irm. Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined. Vicki H. Hoover, Paris, For Appellant, Annette Ola Fann Larry J. Logan, McKenzie, For Appellee, William Edward Fann

OPINION Appellee William Edward Fann (“Husban d”) and Appellant A nnette Ola Fann (“Wife”) were marrie d in October of 1995. Following two separ

ations, one in Octo

ber of 1998 and an

other in March of 1999, Husband sued fo r divorc e on the grounds of inappropriate ma

rital conduct. Ms. Fann contested the divo

rce, apparent

ly wishing to

remain married t

o Mr. Fann. 1 On May 22, 2000, the Chancellor granted

Husband a divorc

e on the grounds of

inappropriate

marital conduct and set2 The record does not indicate whether the prior marriages e

nded in death or divorce. 

### -2- out a di vision of property. This was the second marriage for both parties 2 , and there were n o children born of the marriage.
Husband and Wife met at a tent meetin g. At the time

the parties met and married, Ms. Fann had a home in Mississippi and Mr. Fann had a home in Tennessee. Apparently, although Ms. Fann wished to sell her Mississipp i home and move all h

er belongings to Tennessee, her mother was seriously ill at the time the pa

rties married an

d Ms. Fann felt she c

ould not leave Missi

ssip pi. Similarly, Mr. Fann’s mother was in a Tennessee nu rsing home, and he

was unwilling to

move to Mississippi to be with his wife.
Wife appeals the Order of

Divorce and raises two issues on appeal: (1) Whether the trial court abused its discretion in awarding Husband a divorce based on inappropriate marital conduct withno corroborating evidence; and (2) Whether Husband carried the burden of proving cruel and inhuman treatment as grounds for divorce.
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 fac t by the tria

l court. Unless the evidence preponderates

against the findin

gs, we must affirm

, absent error of law. See Tenn. R. App. P. 13(d).
Wife first argues that, absent corroborating evidence, the trial court abused its

discretion in granting Husband a divorce based upon inappropriate marital conduct when Wife denied Husband’s allegations.In Howell v. Howell , 6 TAM 18-9 (Tenn. Ct. App. 1981), this Court discussed the issue of corroboration after the passage of the irreconcilable differe nces statute, now codified at T.C.A. § 36-4-103:
The sub je ct of the required corroboration under the Tennessee divorce laws has been muc h discussed in

this state by

bench, bar and litigants themselves. The practice of requiring corroboration and in what form has varied widely across the great State of Tennessee from court to court. . . .
The requirement of some c orroboration under some circumstances was apparently construed into the law b ecau se of a legislative and/or judicial fear of divorce born out of collusion. See Fulford v. Fulford

, 156 Tenn. 640, 4 S.W.2d 350 (1928).

### -3- Y e tby passage of the “irreconcilable diffe rences” statute, T.C.A. 36-801, the legislature obv io usly evidenc ed an intent to, in effect, all ow d ivo rce b y “col lus ion ” and wit hou t an y r eal fa ult by either, if certain condition s are m et, e.g. , children and property are provided for in writing to the trial court’s satisfaction.
* * *
Once both parties have taken the witness stand under oath and factual disputes arise, the credibility of those parties must be determined by the cour t just as in other disp uted matters. Corroboration is desirable to the extent that it buttresse s the credibility of one spouse or cast s do ubt as to the credibility of another. But, we believe as a matter of law that corroborat ion is not mandatory in every case where the divorce is brought to it s ultimate conclusion on a co ntested basis.
Id. at 13-14, 18 (footnote omitted)(second emphasis added).
The facts in this case are unlikely to raise the specter of collusion. As the Howell Court went on to note:
In any event th is is not an uncontested divorce. In the instant case the defendant husba nd has strenuously contested plaintiff’s effor t to dissolve the marriage. He has obtained distinguished counsel and has appropriately

joined issue in

the pleadings. Having contested the ultimate grant of the divorce, we see little or no l i kelihood for collusion betwee

n the parties.
Id. at 17. In the case at bar, Ms. Fann quite pla inly opposes t

he parties’ divorce. Under the facts of this case, we hold the trial court did not abuse its discretion in granting the divorce with no corroborating evidence. Having determined that corr oboration is unnecessary, we next address Wife’s contention that Husband failed to carry his burden of proving the e

xistence of inappr

opriate marital c

onduct. This is essentially a preponderance question a nd in this c ase, the only evidence presented was the testimonyof the two parties. In a c ase where the resolution of the issues depends upon the truthfulness

of witnesses, the trial judge who has the opportunity to observe the witnesses in their manner and demeanor w hile test ifying is in a far be

tter position than th

is Court to decide th

ose issues. See McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). The weight, faith, and credit to be given to any witness’s

### -4-

testimony lies in the first instance with the trier of fact, and the credibility accorded must be given great weight by the appellate court. See id .; In re Estate of Walton v . Young , 950 S.W.2d 956, 959 (Tenn. 1997). Inappropria

te marital conduct, also known as “c rue l and inhuman treatment,” has been described as “a wilful, persistent and continuing course of abusive and humiliating treatment of one spouse by the other, asin the case of a course of conduct calculated to torture complaining spouse’s mental or emotional state or bodily health.” Whitaker v. Whitaker , 957 S.W. 834, 837 (Te nn. Ct. App. 1997) (quoting Baber v. Baber , 330 S.W.2d 307, 308 1959)). In reviewing the record in this case, we do not find that th e evidence pre

ponderates ag

ainst the trial court’s finding that Wife engaged in su

ch willful and per

sistent behavior.

This issue is there

fore without meri

t.
Acco rdi ngly, the order of the trial court is affirmed. The case is remanded to the trial court for any furthe

r proceedings

necessary . Costs of the appea l are assessed to

the Appellant, Ann

ette Ola Fann , an d he r su ret y.

__________________________________________ W. FRANK CRAWFORD, P RESIDING JUDGE, W.S

.