### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON June 19, 2001 Session DAVID WAYNE ROUSE v. IRA N ELL ROUSE Direct Appeal from the Chancery Court for Shelby County No. D29666-2 Floyd Peete, Jr., Chancellor

No. W1999-02126-COA-R3-CV - Filed September 26, 2001

This is a divorce action wherein the trial court declared the parties divorced. Husband appea ls the trial court’s decision to admit evidence regarding his retirement plan;its valuation of the same; its award of rehabilitative alimony to Wife; its award of attorney’s fe es to Wife; its division of marital debt; its adopting Wife ’s proposed final decree of divor

ce; its division of ma

rital property ; its admitting evidence regarding Husband’s use of pornog raph y; and its refusal to permit Husband’s Rule 15 Memorandum in the record on appeal. Additionally, W ife seeks her attorney’s fees on appeal. We affirm in part, reverse in part, and remand. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part; Reversed in part; and Remanded
D AVID R. F ARMER , J., delivered the opinio

n of the co urt, in whi ch W. F RANK C RAWFORD , P.J., W.S., and F RANKLIN M URCHISON , S P
. J., joined. Venita Marie Martin, Memphis, Tennessee, for the appellant, David Wayne Rouse. Kay Farese Turner

, Martin W. Cash, Jr. an d William E. Mil ler, Memphis, Tennessee, for the appellee, Ira Nell Rouse. OPINION David Wayne Rouse (Mr. Rouse) and Ira Nell Rouse (Ms. Rouse) were married on August 5, 1989. Mr. Rouse file

d for a divorce in

June of 1998, alleg

ing ir reconcilable di

f ferences. Mr. Rouseamended his compla int in January

of 1999 to allege

the additional ground of inappropriate mar ital conduct. Ms. Rouse filed a counter-complaint for divorce in February of 1999, alleging irreconc ilable

differences a

nd inappropriate

marital conduct.

In their resp

ecti ve answers, both partie s denied that they

were guilty

of inappropriate

marital conduct. At the time of divorce, both parties were 38 years old and were gainfully employed. Mr. Rousewas a Field Servi

ce Technician w

ith Federal Expre

ss and earned ap

proximately

$41,750.00-2-

per year. Ms. Ro

use was a license

d registere d nurse with Ey eCorp and earne

d approximately $41,380 per year. After a three day trial on the matter, the trial court declared the pa rties divorced. Mr. Rouse was awarded approximately $68,039.33 in marital property inc luding, inter alia , his Fed eral Express profit sharing account and pension plan. Ms. Rouse was awarded approxima tely $56,888 .31 in marital property, including, but not limited to, the marital residence, her 401(k), and her mar ital portion of her University of Tennessee retirement annuity

. Mr. Rouse was held

liable for the debt owing on the credit car

ds, and Ms. Rouse was held liable for the mortgage, the car lien, debt owed for restoration of a piano, and the debt incurred by her since the sepa ration specifically owed to her parents. Ms. Rouse was awarded rehabilitative alimony in the amount of $400.00 per month for six months, and her attorney’s fees in the amoun t of $5,000.00. Mr. Rouse appeals, raising the following issues for this court’s review: 1. Whether

the trial court er

red and abused it

s discretion in

admitting hearsay documents

obtained from husband’s employer pursuant to subpoena int o evidence over h

usband’s objectio

ns. 2. Whether

the trial court’s valuation of a benefit plan established and maintainedby husband’s employer was supported b y the evidence

where wife reliedon and testified regar d ing hearsay documents that were not authenticated a

t trial. 3. Whether

the trial court’s award

of rehabilitative alimony to wife was proper under Tennessee law where wife earns more than husband, where wife had a substantial separate estate, and where the trial court awarded wife a substantial portion of the marital estate. 4. Whether

the trial court er

red and abused it

s discretion in ord

ering husband to pay post-separation debt incurred by wife. 5. Whether the trial court erred and abused its discretion in awarding wife her attorney’sfees where the court declared the part ies divo rced pursuant to section 36-4-129(b) of the Tennessee Code Ann otated and where the trial court awarded wife a greater share of the marital estate

. 6. Whether the trial court erred in entering the e

x parte final decree of divorce whic h contained ruling

s and representa

tions not addresse

d in a lette

r t o husband’s counsel regarding the trial court’s decision and where counsel for wife submitted two orders for the trial court to select from without input from husband’s counse

l. 7. Whe the r th e tr ial cou rt d ivi ded the mar ita l es tat e equ ita bly.-3-

8. Whether

the trial court erred

in allowing testimony and documents regarding pornography

where the information was provided the husband’s counsel the eve of trial and where the documents were created and/or downloaded from a website by

wife or her attor

neys. 9. Whether

the trial court

abused its discretion in excluding husband’s Rule 15 Memorandum from th

e record on appe

al. Additionally, Ms. Rouse requests her attorney’s fe es on appeal. Because this case was tried without a jury, our review of the trial court

’s findings of fa

ct is de novo , accompanied by a presumption of correctness, unl ess the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d). Our review of the trial court’s determinations regarding questions of

law is de novo with no presumption of correctness. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Tenn. R. App. P. 13(d). We will now address each issue in turn. Rehabilitative Alimony The trial court ordered Mr. Rouse to pay Ms. Rouse $400.00 per mon th for six months as rehabilitative alimony. An award of rehabilitative alimony must be predicated upon a finding that the reci pie nt s pou se ca n be econ omi cal ly r ehabilitated. See Tenn. Code Ann. § 36-5-101 (1999). A court does not reach the issue of reh abilit ation, however, u nless the recipie

nt spouse is economically

disadvantaged relative to the other spouse. See Cunningham v. Cunningham , 2000 WL 33191364, at *5 (Tenn. Ct. App. Oct. 20, 2000).
In the instant case, Ms. Rouse is a licensed registered nur se with ultrasound experience, earning app rox ima tel y $41 ,38 0 pe r ye ar at th e time of divorce. Mr. Rouse is a Field Service Technicianwith Federal Express, earning approximately $41,750.00 per year. Based

upon the facts in the record, we find that Ms. Rouse is not economically disadvantaged rela tive to Mr. Rouse

. Accordingly, we reverse the trial court’s a ward of rehabilitative alimony to Ms. Rouse. Attorney’s fees Trial courts have the discretion to award additional sums to defray the legal costs resulting from a divorce proceeding. See Fox v. Fox , 657 S.W.2d 747, 749 (Tenn. 1983); Palmer v. Palmer , 562 S.W.2d 833, 838-39 (Tenn. Ct. App. 1977). In divorce cases, awards for litigation expenses are considered

ali mon y in solido , see Houghland v. Houghla nd , 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992), and are appropr

iate when one spou

se is economically

disadvantaged

, la cks su fficient resources with which to pay attorney’s fee s, or would be required to deplete one’s resources. See Herrera v. Herrera , 944 S.W.2d 379, 390 (T enn. Ct. App. 1996) ; Brown v. Brown , 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994).-4-

In the instant matter, Ms. Rouse testified that she was unable to afford her attorney ’s fees. Ms. Rouse’s mother, Mary Sue Rowland, testified that Ms. Rouse has borrowed a pproxim ately $ 12,000.00 to $13,000.00 from h er to apply t

owards pay

ment of Ms. Rouse’s a

ttorney’s f

ees. Further, we note that Ms. Rouse had to expend additional attorney’s fees in order for her counselto preparea defense to Mr. Rouse’s pre-trial position on numerous issues, including, but not limited to, the existence of his retirement plan, his interest in Ms. Rouse’s 1934 Ford, and his allegation that Ms. Rouse had an abortion rather than having suffered a miscarriage, which were then recanted at trial. Based upon the facts in this case, we find that the trial court did n ot abuse its discre tion in awarding Ms. Rou

se $5,000.00 in atto

rney’s fe es. Proposed Final Decree of Divorce Mr. Rouse argues that the trial court erred in adopting Ms. Rouse’s proposed decree of divorce without a hearing to address the parties’ disputes regarding the trial court’s ruling. Rule 17 of the Ru les of the Chancery Court of Shelby County , Tennessee, provides, in pertinent part, a s follows: (c) Orders and Dec rees shall b e prepared by the attorney for the prevailing parties and submitted to attorneys for other parties for approval. . . . (d) In the event of a

disagreement regarding the proper wording of an Order or Decree, the attorneys shall submit to the Court their version of what they think is the appropriate Order or Decree for the Court’s determination. No where in the language of Rule 17 does it state that a hearing must be had when parties disagree as to what the proper wordingof an Orde r or Decree should be. Because both parties had an opportunity

to and did submit their respective proposed final decrees of divorce, we find that the trial court did not err in adopting Ms. Rouse’s proposed final decree. Evidence of Pornog

raphy Mr. Rouse argues that the admission of testimony in documents regarding pornography was prejudicial and should not have been admitted. All releva nt evide nce is admissible un less its probative value is outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 402, 403. The trial court declared

the parties divor

ced pursuant to

Tenn. Code Ann. § 36-4-129(b). The refore, this was not a fault based divorce. Husband argues in his brief that “the admission of such evidence was prejudicial to husband as reflected in the trial court’s distribution of marital assets and the award of alimony andattorney[’s] fees to Wife.” We find no evidence in the record that the trial court was prejudiced

by this evide

nce and, if erro

r, we find the er

ror to be harmless. See rule 36(b) Tenn. R. App. P.1 This rule is currently

Rule 14 of the Rules

of the Chancery Court of Shelby Count y, Tennessee. 2 Pursuant to Rule 24(a) Tenn. R. App. P., the record on appeal s

hall incl ude the origin

al of any exhi

bits fi led in the trial court and the transcript or statement of the eviden ce of the proceedings. T he primary burden is upon the appellant to s

ee that a prope r record is p repared on appe al. See McDonald v. Onoh , 772 S.W .2d 913 , 914 (T enn. Ct. App. 1989) cert denied , 493 U.S. 859 (1989) ; Wilson County Sch . Sys. v . Clift on , 41 S.W.3d 645, 661 (Tenn. Ct . App. 2000) perm. app. denied (Tenn. Oct.9, 2000). However, both parties share the responsibili ty to insure that the record on appeal is co mplete. Karr v. Gibs on , No. 01A01-9605-CH-00220, 1998 WL 5 7536, at *3 (Tenn. Ct. App. Feb. 13, 1998) no perm. app. filed

. -5- Rule 15 Memorandum Mr. Rouse alleges error by the trial court’s refusal to include his Rule 15 1 memorandum in the record on appeal. In view of the fact that this matter is remanded to the trial court to consider distribution of marital property pursuant to this opinion, this issue is pretermitted. Distribution of Marital P roperty The bulk of the marital assets awarded Husband consisted of his FedEx pension plan totaling $5 6,283.60. Wi fe contends that the trial court erred in admitting into evidence a “1997 FedEx compensation benefits statement” which purportedly established that his retirement account had a value of this amount. These documen t s were subpoenaed by Wife’s attorney from Husband’s employer. Husband contends that the documents werenot properly authenticated. We

are unable to review the auth

enticity of t

he documents as the

exhibits are not in the

record before

us. 2
Husband contends that these documents constitute inadmissible hearsay evidence. Wife counters that th ey are a

dmi ssi ble und er R ule 803 (6) , Re cord s of Regu lar ly Co ndu cte d Ac tiv ity. Husbandacknowledges

the rule, but conte

nds that it is still nec

essary tha t a witness testify

, to wit “the custodian or other qualified witness” as set forth in the rule. One of the purposes of the business record s hearsay exception is to facilitate the presentation of business records without unduly disrupting the business’s ac

tivities. Certainly there is no requir

ement that all dec

larants b e called a way from wo rk to tes tif y, but ordinar il

y at least one witness must c ome to court to testify

about the foundation facts. Rule 803(6) simply provides that th e witness be the records “custodian orother qualified witnes s. ” Typically

that witness will

be in charge of maintaining records of the particular business, but other employees or office rs or appropriately

informed witnesse

s could be used as w

ell. The key

is that the witness have knowledge of th

e method of prepa

ring and prese

rving the reco

rds. If no witn

ess is available to testify, the records cannot be authenticated

as business recor

ds, unless the parties stipulate to authentication. NeilP. Cohen, Tennessee Law of Evidence § 8 11 [11] (4th ed. 2000) (emphasis added). Certain documents

are self authenticating pursuant to Rule 902, but the subject documents do not fall within3 Subsequent to the trial of this matter, Ru le 803(6) was amended to provide that, in addition to the testimony

of the custodia n or other q ualified witness, a re cord of re gularly cond ucte d activi ty may also be a dmissible as an exception

to the hearsay r ule if shown “by c ertif ication that complies with Rule 902(11) or a statute permitting certif icati on . . .” This ame ndment wa s effective July 1, 2001. Eff ective at the s ame time wa s the addi

tion of section 11 to Rule 902 and the Advisory Commission Comm ent to that rule provides that it allows affidavits b y custodians to establish the foundation for business reco rds and the custodian nee d not attend trial as a witness

. Section 11 furt her provides that the party intending to offer a record into evide nce under this sectio n must provide notice to all ad verse parties. -6- the rule as they existed at the t ime of trial. 3 W e have determine d that the trial cou

rt erred in admitting sameinto evidence. Since Husband’s pension plan was a substantial portion of the marital property awarded to him,

we reverse the trial court’s distribution of marital property. On remand, the trial court shall

fashion a distribution of marital property and, in the court’s discretion, may hear additional evidence. Post Separation Debt
In view of the fact t

hat his matter is being remanded for a reconsideration of the distribution of marital proper

ty, the cour

t at that time will als

o consider the all

ocation of post-se

paration debt. Attorney’s Fees on Appeal Ms. Rouse requests

her attorney ’s fees on appea l. We respectfully

deny this re

quest. Conclusion
T he trial co urt’s award of r ehabilitative ali

mony and distr

ibution of marital p

roperty is reversed. The final decre e is otherwise af

fir med and this ca use is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal aret axed equally to David Wayne Rouse and his surety and to Ira Nell Rouse.

___________________________________ DAVID R. FARMER, JUDGE