1

FILED

March 4, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

DOROTHY LOUISE BECK, ) C/A NO. 03A01-9601-CV-00023

) McMINN COUNTY CIRCUIT COURT

Plaintiff-Appellee, )

)

)

)

v. ) HONORABLE JOHN B. HAGLER,

) JUDGE

)

)

)

WENDELL LEE BECK, ) AFFIRMED IN PART

) VACATED IN PART

Defendant-Appellant.) REMANDED WITH INSTRUCTIONS

PERRY P. PAINE, JR. and H. ALLEN BRAY of PAINE, GARRETT & BRAY,

Maryville, for Appellant

H. CHRIS TREW of HIGGINS, BIDDLE, CHESTER & TREW, Athens, for

Appellee

O P I N I O N

Susano, J.
1

The parties had four children, two of whom are now emancipated by age. 

The two minor children, both boys, were 12 and 16 years old respectively at

the time of trial.

2

This is a divorce case. The lower court's judgment

dissolved a marriage that had endured, tumultuously at times, for

over 29 years. The trial judge granted the 46-year old

plaintiff, Dorothy Louise Beck (Wife), a divorce on the ground of

adultery; awarded her custody of the parties' two minor

children1; established the child support obligation of the 47-

year-old defendant, Wendell Lee Beck (Husband), at $300 per

month; valued the parties' net marital estate at $372,040, which

he divided equally between them; and awarded Wife alimony in

solido of $25,000 to be paid out of Husband's share of the

proceeds from the auction sale of a portion of the parties'

Englewood farm. Husband appeals, raising issues that present the

following questions:

1. Does the evidence in the record

preponderate against the trial court's

finding that Wife was entitled to an absolute

divorce on the ground of adultery?

2. Did the trial court abuse its discretion

in dividing the parties' marital property?

3. Did the trial court abuse its discretion

in awarding Wife $25,000 alimony in solido?

I

Our review of this non-jury case is de novo; however,

the record comes to us accompanied by a presumption of

correctness that we must honor unless the evidence preponderates

against the trial court's findings. T.R.A.P. 13(d); Union
2

The trial judge expressly found to the contrary.

3

Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993);

Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. App. 1992).

Both of the parties sought a divorce. The defendant

admitted that he had engaged in an adulterous relationship during

the marriage. He attempted to justify his conduct by implying

the plaintiff was guilty of like conduct2. He also testified to

other perceived shortcomings of Wife. Much of his testimony and

the testimony of others supporting him were disputed by Wife. 

The witnesses' credibility was an issue for the trial judge that

he had to evaluate in order to decide whether a divorce was

justified by the proof, and, if so, to whom it should be granted. 

Generally speaking, credibility of witnesses is for the trial

court. Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. App. 1990);

Brown v. Weik, 725 S.W.2d 938, 946 (Tenn. App. 1983).

In this case, we are not in a position, based on a

"cold" record, to second-guess the trial judge's credibilitydriven determination that Wife, and not Husband, was entitled to

a grant of absolute divorce. In any event, our de novo review

persuades us that the evidence does not preponderate against the

trial court's findings regarding the issue of divorce. The

appellant's first issue is found to be without merit.

II

The trial court determined that the parties' total net

marital estate was properly valued at $372,040. One of the
3

The testimony was that the parties' deed called for 209 acres while the

tax map reflected multiple tracts containing 246 acres.

4

assets "in the mix" was a farm in Englewood that contained

between 209 and 246 acres3. The trial court found that the

Englewood farm had a gross market value of $250,700. The

evidence does not preponderate against this finding--a finding

that is not challenged by Husband. What Husband does challenge

is the trial court's determination that the Englewood farm should

initially be allocated to Wife with an assigned net value of

$197,700. Husband argues that the trial court should not have

assigned this asset to Wife at a value that takes into account an

admitted first mortgage indebtedness of $53,000. Under the

unique circumstances of this case, we agree with Husband.

During the parties' marriage, they borrowed money from

First Citizens Bank for their daughter's use in finishing her

house. A deed of trust was placed against 25 acres of the

Englewood farm to secure this indebtedness. Apparently, neither

the daughter nor her husband signed the note to the bank;

however, the parties to this divorce action acknowledged at trial

that it was agreed between the parties and their daughter that

she would make the payments on that obligation; that all of the

note payments to the date of trial had been made by the daughter;

and that the note had never been in default.

It is clear that the obligation in question--the

balance of which was $53,000 at the time of trial--was a real

obligation of the parties. They signed the note and it was

secured by a small portion of their jointly-owned farm. No one
4

The term "abuse of discretion" was defined by the Supreme Court in

another context in the case of Foster v. Amcon International, Inc., 621 S.W.2d

142, 145 (Tenn. 1981):

The term has too often implied intentional wrong, bad

faith or misconduct on the part of a trial judge. In

our view, "abuse of discretion" was never intended to

carry such a meaning, nor to reflect upon the trial

judge in any disparaging manner. To us the phrase

simply meant an erroneous conclusion or judgment on

the part of the trial judge--a conclusion that was

clearly against logic (or reason) and not justified.

5

else was obligated on the note. It is clear that this note must

be addressed in this case; however, we do not believe that this

obligation should be disposed of based upon the assumption that

Wife will be called upon to satisfy this debt. More than likely,

given the history of this obligation, neither of the parties will

be called upon to pay this debt.

We believe the trial court abused its discretion4 in

that the evidence preponderates against the trial court's

implicit finding that Wife will ultimately be burdened with

repaying this $53,000 obligation. The trial court's finding is

hereby vacated. On remand, the trial court will enter an order

modifying its judgment so as to award the Englewood farm to Wife

at an assigned value of $250,700, its gross value. That order

will also provide that, as between the parties, each will be

responsible for half of the remaining balance of the obligation

to the bank in the event their daughter does not pay it. The

order will also provide that each party will indemnify the other

party against any loss arising out of the portion of the debt

that the latter party is not obligated to pay under the terms of

this opinion. We believe that this resolution is the fair way to

handle this particular liability.
5

Both of the "distributed to Wife" figures include the 70 acre tract to

be auctioned.

6

See footnote 6 of this opinion.

7

The trial court equalized this disparity in its decree when it directed

the disposition of the net proceeds from the 70 acre tract.

6

The trial court determined that an equitable

distribution of property in this case was an equal division. The

evidence does not preponderate against that finding; however, the

adjustment that we have made in the trial court's division of

that property requires that we further modify the trial court's

judgment.

In dividing the parties' property, the trial court

found that 70 acres of the Englewood farm initially allocated to

Wife should be auctioned to equalize the distribution of property

between the parties. We do not disagree with this approach; but

obviously, the trial court's judgment of equalization will have

to reflect that the total net marital assets to be distributed,

ignoring the $53,000 debt, are worth $425,040 instead of the

$372,040 found by the trial court. The following is a comparison

between the distribution found by the trial court and that found

by this court, before the adjustment required to accommodate the

auction sale of the 70 acres off of the Englewood farm:

By By

Trial Court Court of Appeals

Distributed to Wife $232,2905 $285,2906

Distributed to Husband 139,750 139,750

 $372,0407 $425,040

 ======== ========
8

The $1,439 represents court reporter charges and a real estate

appraiser's fee.

9

We realize that this portion of our opinion may result in Husband

getting somewhat less than half of the net marital assets; however, we believe

that the division will still be equitable, given the facts of this case.

7

The trial court anticipated that the 70 acres would

bring $1,000 per acre. He directed that $1,439 in expenses8,

along with the expenses of the auction, should be paid from the

proceeds of the auction sale. We agree. We further believe that

the judgment should be modified to provide that Husband should

arrange for the auction of the 70 acres since it is clear that

all or most of the net proceeds from the sale will go to him. If

the auction sale produces net proceeds that result in Husband

getting less than half of the net marital assets, he shall be

entitled to all of the net proceeds9. On the other hand, if the

auction sale produces a bid that results in a disproportionate

share of the net assets going to Husband, Wife shall be entitled

to share in those proceeds to the extent necessary to equalize

the division of marital assets. The judgment below will be

modified by the trial court to reflect these changes to the

division of property decreed by the trial court.

III

Husband's final issue brings into question the trial

court's decree that Husband pay Wife $25,000 alimony in solido

when the auction sale of the 70 acres is finalized. We believe

the trial court abused its discretion in making this award

because the evidence preponderates against the trial court's

implicit findings supporting it.
8

T.C.A. § 36-5-101(d)(1)(A)-(L) sets forth the factors

to be considered by a trial court in its alimony determination. 

Of these factors, the three most important are the needs of the

requesting party, the resources of the other spouse, and the

relative fault of the parties. Hawkins v. Hawkins, 883 S.W.2d

622, 625 (Tenn. App. 1994).

In the instant case, there was no proof of Wife's

current needs. Nowhere in the 36 exhibits and the three volumes 

of transcript is there an affidavit of expenses or testimony

regarding Wife's anticipated monthly outlays for food, clothing,

telephone, health insurance, gasoline for her car, utilities, and

the like. Neither of the parties offered an analysis of the

other party's business or personal checking account. While there

is evidence in the record indicating that each of the parties

owned and operated a florist shop, there is no credible, helpful

evidence of the spendable funds per month spun off by either of

these businesses.

Wife testified that she is currently receiving $210 per

month from the rental of some of her farm land. She also

receives $100 per month from the rental of a house formerly

occupied by her parents. Each of the parties has a tobacco

allotment. It is not clear from the record how much each of the

parties currently receives from that allotment.

Wife testified that she paid all of the family's living

expenses after Husband moved out in May, 1989. Offsetting this

testimony somewhat was testimony that Husband sent Wife one check
10The "gas" incident occurred when the now emancipated children "were

younger." The record does not indicate when Wife passed "bad" checks. The

taxes were for a number of years. All of the incidents relied upon by Wife

are more anecdotal than substantive proof of a current need for support.

9

for $150 and that he paid $3,508.41 on past-due taxes on the

Englewood farm; however, there was evidence that Wife had access

to unneeded funds because she purchased an automobile for one of

her emancipated daughters.

Wife argues that the fact she did not have the funds to

pay the property taxes coupled with the fact that Husband had to

redeem the Englewood farm shows that she needed alimony and that

Husband had the resources to provide alimony. She also relies

upon the fact that on one occasion she was without gas for

heating purposes, and the further fact that she passed

"insufficient funds" checks after the parties separated. All of

this proof10 is certainly some indication that she had a need at

the time of the incidents; but this was not the issue before the

trial court. The real issue was the extent of her current needs

--her needs at the time of trial. There is simply no proof

before us that Wife had needs that were not being funded by her

income from rentals, her tobacco allotment, and her florist shop. 

We cannot speculate on these matters. Further, we cannot award

alimony beyond an individual's demonstrated needs. Alimony in

excess of need is punitive in nature. Cf. Duncan v. Duncan, 686

S.W.2d 568, 571 (Tenn. App. 1984). Alimony is not designed to

punish an errant spouse. Id.

Accordingly, we find that the trial court abused its

discretion when it awarded Wife $25,000 alimony in solido. The

evidence preponderates against that award. It is hereby vacated. 
10

On remand, the trial court will enter an order deleting its

$25,000 alimony in solido award.

Except as vacated herein, the judgment of the trial

court is hereby affirmed. This case is remanded to the trial

court for further proceedings consistent with this opinion and

for collection of costs assessed below. Exercising our

discretion, we tax the costs on appeal one-half to each party.

_______________________________

Charles D. Susano, Jr., J.

CONCUR:

____________________________

Houston M. Goddard, P.J.

____________________________

Don T. McMurray, J.