# FILED

April 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk MYONG S. HUANG, ) DAVIDSON CIRCUIT ) No. 96D-1893 Plaintiff/Appellee ) ) Appeal No. v. ) 01A01-9709-CV-00462 ) JIMMY SHIN HUANG ) ) Defendant/Appel

lant )

) v. ) ) MYONG NAN GATES, ) ) Intervenor/Appellee )

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT

AT NASHVILLE, TENNESSEE

HONORABLE MARIETTA M. SHIPLE Y, JUDGE

William B. Bruce Bruce, Weath

ers, Corley,

Dughman & Ly

le 315 Deaderick Str

eet, Suite 2075 Nashville, TN 3 7238-2075 ATTORNEY FOR DEFENDANT/APPELLANT Mary Arline E

vans Philip W. Duer Stanley A. Davis 214 Third Avenue N

orth Nashville, TN 3 7201 ATTORNEYS FOR PLAINTIFF/APPELLEE AND FOR INTERVENOR/APPELLEE

AFFIRMED AND REMAND ED

WILLIAM H. INMAN, SENIOR JUDGE CONCUR: HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION2

BEN H. CANTRELL, JUDGE MYONG S. HUANG, ) DAVIDSON CIRCUIT ) No. 96D-1893 Plaintiff/Appellee ) ) Appeal No. v. ) 01A01-9709-CV-00462 ) JIMMY SHIN HUANG ) ) Defendant/Appel

lant )

) v. ) ) MYONG NAN GATES, ) ) Intervenor/Appellee )

O P I N I O N In this divorce action the trial court found that Husband and Wife were both guilty of inappr

opriate marit

al conduct and grante

d each a divorce fr

om the other pursuant to T. C.A. § 36-4-129.Custody of the pa rties’ minor

child, age three, was gran

ted to Wife, w

ho was awarded r

ehabilitative alim

ony of $500.00 per mont h for si xty month s and al imony in solido of $500.00 per month which was to termina

te when the note enc

umbering the W

ife’s van, in the

approximate amount of $12,000 .00, was paid in f ull. In a separat

e order on an interve

ning petition, the trial

court entered jud

gment against H

usband and in favor of Intervenor Myong Nan Gates on a Promissory Note. Husband appeals, r

aising the issues of ( 1) award of sole c ustody of the child t o the mot her, (2) award of rehabi litati ve alimo ny, (3) aw ard of al imony in solido, (4) judgment against him and in favor of the Intervenor on the note. Our review of th

e findings of fact m

ade by the trial Cour

t is de novo upon the record of the

trial Court, acc

ompanied by a presumpt

ion of the correctness of the

finding, unless the pr

eponderance of the

evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d).3 Jimmy Shin Huang [“

Husband”] and Myong S. Huang [“Wife”] were married May

14, 1992 in Houston, T

exas. One child,

Lisa Huang, now four years old, was born of this marriage. One m onth later Wife and the child moved to Texas, where

Wife worked in her sister’s danc e club while Husban

d remained in T

ennessee for the ne

xt 18 months. He

went to Texas once

a month “to make money at the flea market,” v isit his f amily and obta in some of Wife’s earnings. The ch

ild’s paternal gr

andparents took the ch

ild to Taiwan for six of the 18 months, and when they returned the child to Husband in Tennessee, Wife returned from

Texas to Tennesse

e and the famil

y lived together briefly. Th e marriage fa

iled soon thereafte

r; Wife allege

d Husband beat her a

nd emotionally abused her; Husband s ays Wife dr ank excessively , frequently d isappeared from home, and maintained phone contact with a former boy friend whom she had lived with briefly

while she was in T

exas. Wife filed an e

arlier petition for

divorce which was

nonsuited. At the time of the no nsuit, Hus band sign ed a promisso ry note for $8 5,000.00 t o Wife’s sister, Myong N

an Gates [“I

ntervenor”] for

monies allegedl

y borrowed duri

ng the marriage. Wife filed this petition for divorce on June 26, 1996 and her sister filed a petition to int

ervene on July 19,

1996 asking the court to recognize the promissory note as a marital debt of the parties and to declare and im pose a lien in her f avor on any asse ts dete rmined t o be Hus band’s proper ty. I Husband appeals the award of sole custody of the parties’ minor daughter to Wife, whom

he characterizes as “a wom an who has actively

engaged in prostitution while she had the girl in her possession.”4 Award of custody

is governed by T .C.A. § 36-6-106, which sets out the determinative

factors: (1) em

otional ties, (2) w

ho is the primar

y care giver,

(3) continuity, (4)

stability, (5)

parental health,

(6) home, sch

ool and comm

unity records, (7) child’s preference (if older), (8) evidence of physical or em otional abuse, and (9) character a nd behavior of oth er persons associat ed with parents. The best interest of th e child is the paramount consideration. Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983)

. The parties’ c

hild was born in Tenn

essee and accom

panied her mothe

r to Texas when she was one month old. During their 18 months’ stay, the m other worked as a nightclu

b dancer, was ar

rested and subsequent

ly convicted of prostitution. Wif

e testified that her

conviction was due to

her involvement

in a business in which other

s were prostitutes , but that she was no t involved in sexual misconduc

t. Further, tha

t her husband had encou

raged her to continue the job, insisting she

return to Texas an

d her work at the nig

htclub to make more money. Husban d testifie d that he k new she was wo rking at h er sister’s club but denied any

knowledge of prostit

ution and testified tha

t he discovered a court document in Wife’s purse charging prostitution, hired a private detective, and thereby learned the source of Wife’s income. The child has been in her mother’s physical custody for all of her life except for a six month visit to Taiwan with grandparents. Husband’s very emotional testimony about his love and for his child was persuasive; however, the evidence indica

tes his business respons

ibilities have requir

ed that most or all of the child’s care be provided by her mother. Wife alleged incidents of Husband’s physical and emotional violence against her and one incident in which he beat the child with a stick, which5

Husband denied. T

he parties were o

rdered by the c

ourt to attend a clas s on helping the child deal with their divorce, and Husband failed t

o attend until a show cause order was ent ered. The trial court a

warded custody

to the mother w

ith liberal visitatio

n to the father, and furt

her ordered that ( 1) if she desires to t ake the child out of Tennessee for m

ore than one mont

h she must apply

to the Court for per

mission, and (2) she is restrained from working at the club formerly owned by her sister in Texas, and fro

m being around pe

ople in that business, when the parties’ minor child is in h

er possession. We find the p repondera nce of the ev idence sup ports the trial cour t’s custody order. II Husband contends the award of rehabilitative alimony was improper because Wife f

ailed to show any

intent or capacity

for training that w

ould increa se her ea rning c apacit y. T.C.A. § 36-5 -101(d) provides fa ctors to determ

ine whether reha

bilitative alimony is a

ppropriate: (1) resources, earning capacities and needs of the parties, (2) education/training necessary to imp rove earning capac

ity, (3) duration of the marriage, (4) age and health of the parties, (5) presence of a minor child in the

home, (6) separate assets of ea ch party, (7)

property settlement, ( 8) standard of living d uring the marr

iage, (9) tangible

and intangible mari

tal contributions of th

e parties, (10) r

elative fault of the

parties, (11) other equitabl e factors. Husband in this case h

ad business assets of $ 194,000.00, wages of $35,800.00 in 1996 from his business, and gambling income from Tunica,6

Mississippi in 1995 of $67, 505.00. Wife ha d a 1996 gross weekly

salary of $200.00 from her

job in a dry cle

aners. She testif

ied that she needs sch

ooling in the English language and that her ability to earn a good income is limited by her child-care responsibilities. We find the p repondera nce of the ev idence sup ports the trial cour t’s award of rehabilitative alimony to Wife. III Husban d appea ls the a ward of a limony in solido on grounds that despite its designation, the a

ward had the effe

ct of giving Wife t

he parties’ Toy

ota Previa van and burdening Husband with the associated debt. He argues that when practicable, the debts should foll ow the assets they

purchased, citing Mondelli v. Howard, 780 S.W.2d 769 (Tenn. App. 1989), and that the trial court abused its discretion in failing to follow this equitable principle. The criteria fo

r allocating ma

rital debts are: ( 1) which party incurred the debt, (2) the purpose for which the debt was incurred, (3) which party benefited from the debt, and (4) which party is best off to assume the obligation to repay the debt. Mondelli, supra. The trial court’ s judgment provi des: “14. That the Hus band sh ould p ay alimony in solido to the Wife in the sum of $500.0

0 per month, com

mencing March

15, 1997, with a like amount due

on the 15th day of e

very month t

hereafter, and which should term

inate when the note e

ncumbering the W

ife’s van, in the approximate amount of $12,000.00, is paid in full, and which should not be subject t

o further modif

ication or term

ination by the Wife’s death or remarriage; 15. That the Wi

fe should be awarde

d the Toyota Pr

evia van and the Husband should be awarded the Dodge truck, and that each party should be sol

ely responsible f

or the notes encum

bering their respective vehicles, and indemnif y and hold each oth

er harmless thereon;”7 The evidence is abu

ndant that Husband has

the ability to ea

rn a substantial incom

e from his business and other ventures , while Wife’ s monthly earnings as a dry cleaning worker are completely inadequat e for her support. We find the tria

l court did not abuse it discretion in awar ding the van and alimony in solido.

IV Finally, Husband appeals the separate order by the trial court which entered judgm

ent against him a

nd in favor of Inter

venor Myong Nan G

ates on a promissory note. The Intervenor alleged in her petition that she and other family mem bers had loaned Husband var

ious sums of m

oney throughout the

marriage, most of which was used by

Husband for his business ventures. As the parties’ ma

rriage deteriorated, I

ntervenor becam

e concerned about r

epayment of

these loans and, on March 20, 1996, obt

ained a promisso

ry note for $85, 000.00 from Husband secured by a Deed of Trust on his business property. Three months later W ife filed this action for

divorce. Interve

nor sought the Court’ s recognition and protection of her int

erest. Husband answered t

hat he signed the note b

ecause of his Wif

e’s threat to prevent his visitation with their child, a nd that his total indebte

dness to his sister-in-law w

as only $41,000.0

0, with a balance

of approximate

ly $35,000.00 at the time he s

igned the note. How

ever, Exhibit 11 to his deposition is his handwr itten n ote con tainin g the fo llowin g names an d number s, which Wife says is his calculation of his debts: Sister 85,000.00 Credit 20,000.001 Husband ’s testimony indicated he had credit card debt of appro ximately $20 ,000.00, ow ed a first mortgage of $70,000.00 on his business propert y to Mr. Brown Taylor and his wife Sammie Taylor, and owed $45,00 0.00 to h is uncle for a loan he obtained to purch ase inven tory for h is business. 8 Mr. Taylor 70,000.00 Uncle 45,000.00

220,000.00 1 Husband admitted writing the note but denied that the $85,000.00 figure had any particul

ar significance a

nd continued to insist his debt to his sister-inlaw was never m

ore than $50,000.00.

The trial court f

ound:

“ . . . th at there is no specif ic defense of fra

ud or duress alleged b

y [Husband] nor any allegat ion to reflect that [H

usband] was forced to sign the Note upon a threat, physical or psychological harm, or that his name was forged or any of the maj or defenses to a contract acti on. TheCourt finds thatthe Note was very clear in its terms and there were no ambiguities an

d nothing to indicate tha

t the terms of t

he Note were difficult to underst

and. The Court theref

ore will not hear a

ny evidence as to the Note or to any amounts paid prior to the d ate of execution of the Not e.” The court entere

d a separate judgm

ent for Intervenor

for $85,000.00 less $2,500.00 Husband pa

id to Intervenor af

ter its execution. Husband had also paid in to the C lerk’s R egistr y $23,91 8.00 fr om the sa le of ot her real proper ty, which the court re

leased, with the a

cquiescence of Husband, to Intervenor in partial satisfact

ion of the judgm

ent. The court f

ound the balance owin

g by Husband to Interveno

r to be $58,582.00 and

ordered that the lie

n against Husband’s business property which secured the prom

issory note should r

emain in effect, subject to a pre- existing first mortgag e to Mr. Brown Taylor. Husband contends he suf ficiently pled t

he affirmat

ive defense of duress, and if not, he should have been allowed to amend his answer under T. R. C. P. 8.03 and present evi dence that his debt to Intervenor was sub stantially less.9

Wife says th

e trial court corr

ectly applied T . R. C. P. 12. 06 and struck his insufficient defen se. We find no motion to amend or for l eave to make an affirmative defense

. At best, Husband sa

ys only that he

did not owe the aggra

gated indebtedness of $85,000.00 at the tim

e he executed the not

e and Deed of Trust. His explanatio n therefor was the

claimed threa

t that if he did not exe

cute the note, visita

tion privileges would be withheld. This is hardly duress; moreover, he later acknowledged an ind ebtedness of $85,0 00.00 to an unnamed credi tor. Husband argues that the case should be re manded to allow

him the opportunity to produce evidence that he did not owe his sister-in-law $85,000.00 at the tim

e he executed the not

e to her; but the plea

dings do not admit of this re

course, since appe

llant offered no af

firmative def

enses to the note which he admits he executed and the parol evidence rule becomes an insurmountable obstable. The judgment

of the trial court i s affirmed w ith costs assessed to th

e appellant.

________________________________ William H.

Inman, Senio

r Judge CONCUR:

___________________________ Henry F. T

odd Presiding Judge, Mid

dle Section

_________________________ Ben H. Cantrell , Judge10