# FILED January 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

EASTERN S ECTION

TERESA ANN HUGHES HAREN, ) C/A NO. 03A01-9707-CV-00253 ) Plaintiff-A ppellant, ) McM INN CIR CUIT ) v. ) HON. E ARLE G. MURPHY, ) JUDGE JAMES SKYLER HAREN, ) ) MODIFI

ED AND Defendant-Appellee. ) REMANDED

ROG ER E. JE NNE , JENN E, SCO TT & BRY ANT , Cleveland , for Plaintiff-A ppellant. JAMES F. LOGAN, JR., LOGAN, THOMPS ON, MILL ER, BI LBO, THOMPS ON & FISHER, P.C., Cleveland, f or Defendant-Appellee.

O P I N I

O N
Franks, J.

In this divor

ce action the appea

ls focus on the Trial Judge’s cust ody determination, the award of ali mony and child suppor

t, and the division of marital assets. Appellant wife and appell ee husband were married on December 16, 1981. Both parties

were originall

y from the Athens ar

ea. After thei

r marriage, t

hey
move d to Ch arlotte, N orth Ca rolina, w here ap pellee w orked f or an en gineerin g firm. He was transferred a number of t imes, and the part

ies eventuall

y returned t

o the Athens area. After worki ng for his father ’s construct ion business for a

bout three2

yea rs,appellee start

ed hi s own f

irm, the J .S. Haren

Compan y. The Har

ens have t

wo sons wh o were 1 0 and 14 at the time of trial.

The wife filed for divor ce on January 16,1995, and husband filed a n
answer a nd coun ter-compla int. Each co mplaint alleg ed inappro priate marital c onduct, sough t custod y of the ch ildren, an d an eq uitable d ivision o f the pa rties’ asse ts.

Following tria

l, the Court gr

anted the wife a divor

ce on the grounds of inappropriat

e marital conduct, and awarded the part ies joint custody of the

children with prima ry physical custody of the younger c hild to the w ife, and the o lder child to the hus band. The Court ordered the husband t o pay child suppor

t of $640.00 a month, and rehabilitative alimony of $2,00 0.00 a month fo r forty-eight months. The Co urt did not requ ire the wife to pay any child su pport. The court value d the marital e state at $1,750,000.00 an d awarded 60 % to the husba nd and 40% to the wife. The w ife’s 40% comprised the house, furni ture, her car, a boat and $320,000. 00 in cash. The wife contends the Tria l Court erred i

n granting the husband custody of th eir olde st s on. T

ria l cou rtshave wide dis cret ion i n mat ters of custody , and we will no t interfer e, absen t an imp roper e xercise of this d iscretion
. Grant v. Grant , 286 S.W.2d 3 49 (Tenn . App. 195 4). In this case, th e Trial Co urt properly exe rcised its discretion. The Tria l Court pro perly considere d both par ties’ suitability. Both parties t estified about

their int erest in t he children’s wel

fare. Additiona

lly,the Trial Court heard test

imony from two psychol ogists. Also,

the Trial Court

noted that the older child wanted t

o live with his

father. Under T.C.A. §36- 6-106, the court may consider the reasonab le preference of a ch ild twelve years of age or older.

The husband admitted having e xtramarital

affairs. A part

y’s misconduct may reflect

upon his fitness

as a custodian,and may therefore be considered in maki

ng3

custod y determi nations
. Barnhill v. B arnhill , 826 S.W.2d 443, 453 (Tenn. App. 1991). Se xual infide lity or indiscretion, ho wever, “d oes not ipso facto disq ualif y a parent from recei

ving custody of c

hildren.” Mimms v. Mimms , 780 S.W.2d 739, 745 (Tenn. App. 1989). In t his case, t

he evidence did not pr

eponderate against

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

The wif e also argue s the Trial Jud ge should have recu sed himse lf because he previousl

y made a temporary

custody dete

rmination. The wife moved for recusal, which the Trial Court denied. “The determination of whether to recuse onesel f rests w ithin the sound discretio n of the trial judg e. “ Ellison v. Al ley , 902 S.W.2d 415, 418 (Tenn. App. 1995).The appellant’s Motion for Disqualification alleged that th e Trial Co urt’s tempo rary custody ruling made it imp roper for h im to decide the issue at trial . Merely is suing a ruling a dverse to a part

icular part

y is not,by itself, ev idence of bias or preju dice. See Herrera v. Herrera , 944 S.W.2d 379, 392 (Tenn. App. 1996). We find no err or in the Court’ s denial of the mot ion. Both parties cont

est the award of rehabi

litati ve alimony. The Trial Court ordered the appel lee to pay $2, 000.00 a month for forty -eight months. The wife argues the aw ard wa s insuff icient, w hile the h usban d insists it w as exce ssive. Gene rally, the am ount of alimon y is a matte r of disc retion f or the C ourt. Houghland v. Houghland , 844 S.W.2d 619 (Tenn. App. 1992).Appellate courts do not disturb a trial cou rt’s awa rd of ali mony un less the tr ial court manif estly abus es discre tion. Ingram v. Ingram , 721 S.W.2d 26 2 (Tenn. App . 1986). We con cur with the Judge’s award of alim ony in this case. See T.C.A . §36-5 -101(d )(1).

The wif e is a proper candidate f or rehabilitation . At the time o f trial, she was 39 years old and in good health. She had completed approximat ely thre e years of col

lege and plans to r

eturn to obtai

n her degree. After gr

aduation, she hopes to attain a teach ing position . The dura tion of the a ward sho uld be suf ficient for h er to4

comp lete her tr aining a nd obta in suitab le emp loyment.

Both parties question the amount of al imony. Generall

y, a divor

ce should not infli ct undu e econ omic h ardship on an in nocen t spous e. Brown v. Brown , 913 S.W.2d 1 63, 169 (Tenn. A pp. 1994). Spousa l support awards are n ot, however, intende d to be p unitive. Id. The notio n that divorc e should n ot econom ically prej udice an i

nnoc ent s

pous e must

als o be t emper ed by the f actors l ist ed in T.C. A. §36-5 -101(d )(1). Id. at 169-170.

T.C.A. §36-5-101(d)( 1) lists factors for t

he trial cour

t to consider . The parties were married for fifteen years and both are in good health. The husband has a degree from Georgia Inst itute of Technology, and has report ed 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 d uring the marriage. The husband’s incom e has, however, decline d recen tly. The pa rties hav e offe red con flicting e xplana tions fo r this dec line. The husband attribut

es it to t he vicissit

udes of the construc

tion business , and changes in the com pany’s projec ts. The wif e claims that th e husban d presented an improp erly low picture of his

assets to t

he Court. Additional

ly, t he Trial Court awarded t he wife 40% of the marital est

ate, incl uding cash. Consider

ing these awards in f

avor of the wife, th e amo unt of a limony w as not im proper .

Both parties al so contest the amount of the child support. The wife argues that it is too low, while the h usband contend s it is excessive. The Trial Cou rt set the wife’s c

hild support obl

igations at

$640.00 a month for the y ounger child. The child su pport g uideline s create a rebutta ble pres umptio n of the proper suppo rt amou nt. T.C.A. §36-5-101(e)( 1). If the Trial Court deviat es from the guideli

nes, it must

make a written finding to supp ort its var iance. Id. In this case, $640.00 a month is les s than the amount suggested by the guidelines.1 The husband also apparently drives a com pany car. While this car counts as a sourc e of income under the Guidelines, the record contains no ev idence of its value.
5 To determ ine the prop er amoun t of suppo rt under the g uidelines, it is first necess ary to det

ermine the husband’s

gross income. The husband’ s 1995 federal income tax retur

n lists t he following sources of income: $66,741.00 wages,$278.00 taxable int

erest income, $43. 00 dividend income, $61, 836 capital gai ns, ($960.00 other gains, $6,309.00 pensions and annuities, and $3,207.00 farm income. All these sources count in det

ermining gross i

ncome under the guideli nes. The sources y

ield an initial gross income of $139,374. 00. The husband’s farm expenses , not includi ng depreciation,

totaled $54,661.Thus, his gross i ncome is $84,713.00. 1 Child support paymen ts are based on a flat percen tage of the obligor’s net income. Net income i s determined by subtracti

ng from gross income FICA, the amount of withholding t ax deducted for a singl

e wage earner claiming one withholding all

owance, and any other

child support obl

igations. The husband’s tax return shows federal

withholdings of $12, 673.00, Social Sec urity wit hholdings of $3,794.00 and Medicare withhol dings of $1,030.00. These amounts reduce his net income to $67,21 6.00. Multiplying by 21% to d etermine the proper am ount of support for one ch ild, the total yearly obliga tion is $14,11 5.00 or $1 ,176.00 a m onth. This is the pres umptiv ely prope r amou nt unde r the Gu idelines
.

The Trial Judge did not make an express finding of t he husband’s net income, and it i s evident from the br iefs and argument of t

he parties’ a

ttorneys , that the Judge did not t

ake into account al

l of the husband’s i

ncome as required under t he guidelines. Accordingly,we establish t he child support

at $1,176.00 per mont

h. On the issue of the di

vision of marit

al property , we conclude the Tria l Judge made an equitable di stribution between the parties. Tennessee is a dual proper ty jurisdictio n, Batson v. Batson , 769 S .W.2d 849, 85 6 (Ten n. App . 1988)
.6

T.C.A. §36-4-121 provides only for the

division of mari

tal propert

y. In this case, the Trial Court did not

make specific findi

ngs concerning the mari tal or separa

te status of each p iece of proper ty. Presum ably, he fo und the proper ty at issue to be ma rital. See Herrera v. Herrera , 944 S.W.2d 3 79, 389 (Tenn. A pp. 1996).

Because the value of mari tal propert

y is a quest

ion of fact, t

he Trial Court’s decision is presumed to be cor rect unless t

he evidence preponderat es otherw ise. See Ha rdin v. Ha rdin , 689 S.W.2d 152, 154 (Tenn. App. 1983) . The Trial Court valued the marital estate at $1,750,000.00. Both parti es submitted “estimates” of values. We conclude t hat the Trial

Court’s evaluat

ion was “within the r

ange of the eviden ce subm itted” an d shou ld not b e disturb ed on a ppeal. Wallace v. Wallace , 733 S.W.2d 102, 10 7 (Tenn. App . 1987).

The husband contends the Court di d not give him proper cr edit for approxim ately $380,00 0.00 in gifts f rom his fa ther. Such g ifts are consid ered separ ate property under T.C.A. §36-4-121(b)(2)(D). The only evidence of these gifts, howev er, was a n umber o f checks a nd depo sit slips, only one o f which e xplicitly stat ed tha t it was a gi ft. Although some of t

he checks wer

e dat ed at the s ame ti

me every year, a suggesti

on they may have be

en regular gift

s, there i s no clear evidence about how the funds were disbursed. The Trial Judge di d not err on thi s issue. Trial co urts hav e broad discretio n in div iding m arital esta tes. Kincaid v. Kincaid , 912 S.W.2d 140, 143 (Tenn. App. 1995) , and appellat e courts general

ly do not disturb a trial court’s division unless “the distribution lac ks proper evidentiary support or r esults from an error of law or a m isrepresenta tion of statuto ry requiremen ts and pro cedure s”. Thompson v. Thompson , 797 S .W.2d 599, 60 4 (Ten n. App . 1990)
. No such error appears i n the record. The evi

dence does not preponderat e against the Trial Ju dge’s d ivision.

The Trial court ordered the husband to pay the wife $320,000.00 in cash7

as part of the equitable d istribution. Th e parties repre sent that the C ourt subseq uently ordered the husband t

o pay inter

est 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 accord ance with the statut ory 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 lan guage is m andatory and not subject to reductio n for eq uitable c onside rations. 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 judgm ents sub ject to the statutory ra te. Inman v. Inman , 840 S.W.2d 927, 931 (Tenn. App. 1 992). Next, the wife contends the Trial Court

erred in not holding the husband in contempt for hi s non-compliance with t he temporary or

ders issued by

the Trial Judge. A ppellate cou rts “are loathe to interfere o r modify the p unishme nt imposed in contempt proceedings

because such determina tions lie within the sound di scretion of the trial court.” Herrera v. Herrera , 944 S.W.2d 379, 393 (Tenn. App. 1996) . The Trial Court det

ermined that t

he husband complied with i ts orders and purged him of any contempt. Nothing in the recor d suggests thi s determination was an abuse of discretion. Finally , both parti es contest t

he award of attorney ’s fees. The Trial Judge ordered the h usband to pay $10,00 0.00 of the wife’s attorne y’s fees. Attorney’s fee awards are within t

he sound discreti

on of the Trial Court

and will not be disturbed on app eal unle ss the ev idence prepon derates agains t the dec ision. Kincaid v . Kincaid , 912 S.W.2d 140, 144 (Tenn. App. 1995).In this case, the evidence does not prepond erate agains t the Trial Co urt’s finding . We affirm the Trial Jud ge on this issue.8 The judg ment of th e Trial Co urt is affirme d, as mod ified, and the costs
are a sses sed o ne-h alf to each part y.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ Hon. William H. Inman, Sr.J.