FILED

January 13, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

TERESA ANN HUGHES HAREN, ) C/A NO. 03A01-9707-CV-00253

)

Plaintiff-Appellant, ) McMINN CIRCUIT

)

v. ) HON. EARLE G. MURPHY,

) JUDGE

JAMES SKYLER HAREN, )

) MODIFIED AND

Defendant-Appellee. ) REMANDED

ROGER E. JENNE, JENNE, SCOTT & BRYANT, Cleveland, for Plaintiff-Appellant.

JAMES F. LOGAN, JR., LOGAN, THOMPSON, MILLER, BILBO, THOMPSON &

FISHER, P.C., Cleveland, for Defendant-Appellee.

O P I N I O N

Franks, J.

In this divorce action the appeals focus on the Trial Judge’s custody

determination, the award of alimony and child support, and the division of marital

assets.

Appellant wife and appellee husband were married on December 16,

1981. Both parties were originally from the Athens area. After their marriage, they

moved to Charlotte, North Ca rolina, where appellee worked for an engineering firm. 

He was transferred a number of times, and the parties eventually returned to the

Athens area. After working for his father’s construction business for about three
2

years, appellee started his own firm, the J.S. Haren Company. The Harens have two

sons who were 10 and 14 at the time of trial.

The wife filed for divorce on January 16, 1995, and husband filed an

answer and counter-compla int. Each complaint alleged inappropriate marital conduct,

sought custody of the children, and an equitable division of the parties’ asse ts. 

Following trial, the Court granted the wife a divorce on the grounds of

inappropriate marital conduct, and awarded the parties joint custody of the children

with prima ry physical custody of the younger child to the wife, and the older child to

the husband. 

The Court ordered the husband to pay child support of $640.00 a month,

and rehabilitative alimony of $2,000.00 a month for forty-eight months. The Court

did not require the wife to pay any child support. The court valued the marital e state

at $1,750,000.00 and awarded 60% to the husband and 40% to the wife. The wife’s

40% comprised the house, furniture, her car, a boat and $320,000.00 in cash.

The wife contends the Trial Court erred in granting the husband custody

of their oldest son. Trial courts have wide discretion in matters of custody, and we

will not interfere, absent an improper exercise of this discretion. Grant v. Grant, 286

S.W.2d 349 (Tenn. App. 1954). In this case, the Trial Court properly exe rcised its

discretion.

The Trial Court properly considered both parties’ suitability. Both

parties testified about their interest in the children’s welfare. Additionally, the Trial

Court heard testimony from two psychologists. Also, the Trial Court noted that the

older child wanted to live with his father. Under T.C.A. §36-6-106, the court may

consider the reasonable preference of a child twelve years of age or older.

The husband admitted having extramarital affairs. A party’s misconduct

may reflect upon his fitness as a custodian, and may therefore be considered in making
3

custody determinations. Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. App.

1991). Sexual infidelity or indiscretion, however, “does not ipso facto disqualify a

parent from receiving custody of children.” Mimms v. Mimms, 780 S.W.2d 739, 745

(Tenn. App. 1989). In this case, the evidence did not preponderate against the Trial

Judge’s determination. T.R.A.P. Rule 13(d).

The wif e also argue s the Trial Judge should have recused himse lf

because he previously made a temporary custody determination. The wife moved for

recusal, which the Trial Court denied. “The determination of whether to recuse

oneself rests within the sound discretion of the trial judge. “Ellison v. Alley, 902

S.W.2d 415, 418 (Tenn. App. 1995). The appellant’s Motion for Disqualification

alleged that the Trial Court’s temporary custody ruling made it improper for him to

decide the issue at trial. Merely issuing a ruling adverse to a particular party is not, by

itself, evidence of bias or prejudice. See Herrera v. Herrera, 944 S.W.2d 379, 392

(Tenn. App. 1996). We find no error in the Court’s denial of the motion.

Both parties contest the award of rehabilitative alimony. The Trial

Court ordered the appellee to pay $2,000.00 a month for forty-eight months. The wife

argues the award wa s insufficient, while the husband insists it was exce ssive. 

Generally, the amount of alimony is a matter of disc retion for the Court. Houghland

v. Houghland, 844 S.W.2d 619 (Tenn. App. 1992). Appellate courts do not disturb a

trial court’s awa rd of alimony unless the trial court manifestly abuses discre tion. 

Ingram v. Ingram, 721 S.W.2d 262 (Tenn. App. 1986). We concur with the Judge’s

award of alimony in this case. See T.C.A. §36-5-101(d)(1). 

The wif e is a proper candidate for rehabilitation. At the time of trial,

she was 39 years old and in good health. She had completed approximately three

years of college and plans to return to obtain her degree. After graduation, she hopes

to attain a teaching position. The dura tion of the award should be sufficient for her to
4

complete her training and obta in suitable employment. 

Both parties question the amount of alimony. Generally, a divorce

should not inflict undue economic hardship on an innocent spouse. Brown v. Brown,

913 S.W.2d 163, 169 (Tenn. App. 1994). Spousa l support awards are not, however,

intended to be punitive. Id. The notion that divorc e should not economically

prejudice an innocent spouse must also be tempered by the factors listed in T.C.A.

§36-5-101(d)(1). Id. at 169-170.

T.C.A. §36-5-101(d)(1) lists factors for the trial court to consider. The

parties were married for fifteen years and both are in good health. The husband has a

degree from Georgia Institute of Technology, and has reported income in excess of

$200,000.00 a year in the past. The wife has never worked outside the home, and has

yet to complete her college education. In this case, the parties enjoyed a relatively

high standard of living during the marriage. The husband’s income has, however,

declined recently. The pa rties have offered conflicting explana tions for this dec line. 

The husband attributes it to the vicissitudes of the construction business, and changes

in the company’s projects. The wif e claims that the husband presented an improperly

low picture of his assets to the Court. Additionally, the Trial Court awarded the wife

40% of the marital estate, including cash. Considering these awards in favor of the

wife, the amount of a limony was not improper. 

Both parties also contest the amount of the child support. The wife

argues that it is too low, while the husband contends it is excessive. The Trial Court

set the wife’s child support obligations at $640.00 a month for the younger child. The

child support guideline s create a rebuttable presumption of the proper support amount. 

T.C.A. §36-5-101(e)(1). If the Trial Court deviates from the guidelines, it must make

a written finding to support its variance. Id. In this case, $640.00 a month is less than

the amount suggested by the guidelines.
1

The husband also apparently drives a company car. While this car counts as a source of income 

under the Guidelines, the record contains no evidence of its value.

5

To determine the proper amount of support under the guidelines, it is

first necessary to determine the husband’s gross income. The husband’s 1995 federal

income tax return lists the following sources of income: $66,741.00 wages, $278.00

taxable interest income, $43.00 dividend income, $61,836 capital gains, ($960.00

other gains, $6,309.00 pensions and annuities, and $3,207.00 farm income. All these

sources count in determining gross income under the guidelines. The sources yield an

initial gross income of $139,374.00. The husband’s farm expenses, not including

depreciation, totaled $54,661. Thus, his gross income is $84,713.00.1

Child support payments are based on a flat percentage of the obligor’s

net income. Net income is determined by subtracting from gross income FICA, the

amount of withholding tax deducted for a single wage earner claiming one

withholding allowance, and any other child support obligations. The husband’s tax

return shows federal withholdings of $12,673.00, Social Security withholdings of

$3,794.00 and Medicare withholdings of $1,030.00. These amounts reduce his net

income to $67,216.00. Multiplying by 21% to determine the proper amount of support

for one child, the total yearly obligation is $14,115.00 or $1,176.00 a month. This is

the presumptively prope r amount unde r the Guidelines. 

The Trial Judge did not make an express finding of the husband’s net

income, and it is evident from the briefs and argument of the parties’ attorneys, that

the Judge did not take into account all of the husband’s income as required under the

guidelines. Accordingly, we establish the child support at $1,176.00 per month.

On the issue of the division of marital property, we conclude the Trial

Judge made an equitable distribution between the parties. Tennessee is a dual

property jurisdiction, Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. App. 1988). 
6

T.C.A. §36-4-121 provides only for the division of marital property. In this case, the

Trial Court did not make specific findings concerning the marital or separate status of

each piece of property. Presumably, he found the property at issue to be marital. See

Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. App. 1996).

Because the value of marital property is a question of fact, the Trial

Court’s decision is presumed to be correct unless the evidence preponderates

otherwise. See Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. App. 1983). The Trial

Court valued the marital estate at $1,750,000.00. Both parties submitted “estimates”

of values. We conclude that the Trial Court’s evaluation was “within the range of the

evidence submitted” and should not be disturbed on appeal. Wallace v. Wallace, 733

S.W.2d 102, 107 (Tenn. App. 1987).

The husband contends the Court did not give him proper credit for

approximately $380,000.00 in gifts from his father. Such gifts are considered separate

property under T.C.A. §36-4-121(b)(2)(D). The only evidence of these gifts,

however, was a number of checks and deposit slips, only one of which explicitly

stated that it was a gift. Although some of the checks were dated at the same time

every year, a suggestion they may have been regular gifts, there is no clear evidence

about how the funds were disbursed. The Trial Judge did not err on this issue.

Trial courts have broad discretion in dividing marital estates. Kincaid v.

Kincaid, 912 S.W.2d 140, 143 (Tenn. App. 1995), and appellate courts generally do

not disturb a trial court’s division unless “the distribution lacks proper evidentiary

support or results from an error of law or a misrepresentation of statutory requirements

and procedure s”. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990). 

No such error appears in the record. The evidence does not preponderate against the

Trial Judge’s division. 

The Trial court ordered the husband to pay the wife $320,000.00 in cash
7

as part of the equitable distribution. The parties repre sent that the Court subsequently

ordered the husband to pay interest on this award at 6% per annum. We do not find

such orde r in the record and conc lude that intere st should be set in accordance with

the statutory rate.

T.C.A. §47-14-121 states: “interest on judgments, including decrees,

shall be computed at the effective rate of 10% per annum, except as may be otherwise

provided or permitted by statute . . . .” This language is mandatory and not subject to

reduction for equitable considerations. Bedwe ll v. Bedwe ll, 774 S.W.2d 953 (Tenn.

App. 1989). This Court has held that cash awards in divorce cases are money

judgments subject to the statutory ra te. Inman v. Inman, 840 S.W.2d 927, 931 (Tenn.

App. 1992). 

Next, the wife contends the Trial Court erred in not holding the husband

in contempt for his non-compliance with the temporary orders issued by the Trial

Judge. Appellate courts “are loathe to interfere or modify the punishment imposed in

contempt proceedings because such determinations lie within the sound discretion of

the trial court.” Herrera v. Herrera, 944 S.W.2d 379, 393 (Tenn. App. 1996). The

Trial Court determined that the husband complied with its orders and purged him of

any contempt. Nothing in the record suggests this determination was an abuse of

discretion.

Finally, both parties contest the award of attorney’s fees. The Trial

Judge ordered the husband to pay $10,000.00 of the wife’s attorney’s fees. Attorney’s

fee awards are within the sound discretion of the Trial Court and will not be disturbed

on appeal unle ss the evidence preponderates against the dec ision. Kincaid v . Kincaid,

912 S.W.2d 140, 144 (Tenn. App. 1995). In this case, the evidence does not

preponderate against the Trial Court’s finding. We affirm the Trial Judge on this

issue.
8

The judgment of the Trial Court is affirmed, as modified, and the costs

are assessed one-half to each party.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Hon. William H. Inman, Sr.J.