# FILED

December 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

WANDA FAYE BROWN, ) ) Plaintiff/Appella

nt, ) Marion Circuit No. 12201

) v. ) ) JOHN CHESTER BROWN, ) Appeal No. M1998- 00554-COA-R3-CV ) Defendant/Appellee. )

APPEAL FROM THE MARION COUNTY CIRCUI T COURT AT JASPER, TENNESSEE THE HONORABLE BUDDY D. PERRY, JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : L. Thomas Austi

n Jerry B. Bible Dunlap, Tennessee Jasper, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: ALAN E. HIGHERS, J. DAVI D R. FAR

MER, J.OPINION

This is a divorce case. The trial court divided the marital estate and granted the wife alimony in futuro . Both the wife andthe husband appea l the division of mar

ital property

and the award of alimony. We affi

rm. D efendant/Appellee

John Brown (“Husband”) and Plaintiff/Appellant Wanda Brown (“Wife ”) s eparated in Oct ober 1996 after

twenty-five yea

rs of marriage.

At the time of trial

, Husband was fifty-seven

years old and Wife was fifty-six. Prior to the parties’ separation, Husband worked as a truc

k driver for MS Carriers. While Wife worked outside the home in the early years of the marriage, th

e parties later a

greed that she wo

uld quit her job and s

tay at home to raise

their child. Husband owned a $ 60,000 home at the time the parties married, but he deeded the home and the surrounding property to himself and Wife as tenants by the entirety soon after they were married. Wife testified at trial that approximately twelve to thirteen thousand dollars which she received by inheritance was used to make improvements to the home during the marriage. Wife testified at trial that

Husband was verbally abusive to both her and the parties’ daughter throughoutthe marriage. The daughter, now an adult, corroborated Wife’s allegations of a bu se. Husband testified that while he may have occ asional ly “cussed” Wife, he did not remember threatening Wife or their da ughter. Husband c

laimed that Wife was verbally abusive and rude toward him a nd toward his family throughout the marriage. Husband admits that he began a relationship

with another woman soon after the parties separated. Wife filed for divorce on October 16, 1996, and Husband counter-claimed for divorce on October 31, 1996. Husband has a high school education. His average gross salary as a truck driver for 1994 and 1995 was $35,515. In the first ten months of 1996, he had a gross salary of $37,427.00. On the day Husband and Wife separa ted, Husband volun

tarily quit his job with MS Carriers. Husband admits that he did not quit because of physical reasons, but testified that he now may have trouble driving

a truck at night

because he has glaucoma, an eye condition. Husband testified that his glaucoma is kept under control by medicationand that he is apparently still physically qualified to drive a truck. Nev ertheless,Husband testified that he does not pla

n to look for a new j ob in truckin g. Husban d took a job as a security guard during the parties’ separation but was fired when he wasjailed for onehundred twenty days for contempt for failing to pay alimony.- 2 -

Wife has a

high school education but no significant work experience, training, or skills. She is classified as disabled under Social Security Administration guidelines due to a variety of ailments, including back problems. At the time of trial,

Wife had no independent

source of income. However, after the parties’ separation, she earned approximately sixty dollars per week o ver a period of si

x weeks sitting with an ailing el de rly woman. When the elderly woman began feeling better, Wife stopped sitting with her. Wife claims regular monthly expenses of approximately $1,060.20. The trial court grant

ed a divorce to W

ife on January 8,

1998, and divided th

e marital assets and debts between the parties. The trial court initially granted Wife a one-half interest in the marital home and the surrounding real estate and awarded the other one-half interest to Wife as alimony in solido

. Upon reconsideration, however, the tri al court awarde

d Wife a life esta

te inHusband’s onehalf interest in the home and real estate and an exclusive right to live in the home. Husband was awarded the right to use his one-half remainder interest if Wife predeceased him. Wife was awarded

a 1994 Ford Tempo a

nd Husband a 1992 Fo

rd Ranger XLT Pick

up, with eachparty individually

responsible for a

ny indebtedness. T

he trial court divi

ded equally all de

bts, totaling approxima

tely $4,528, as we

ll as all household g

oods and furnishin

gs. The trial court awarded to Husband t h e proceeds from an MS Carrier Retirement Fund, approximately

$17,142, the procee ds from a n IRA, approximately $3,000, and the proceeds from

a $70,000 certificate of deposit, which Husband inherited from his parents. Wife was awarded the proceeds of the parties’ savings account, approximately $1,492, and the proceeds of an IRA. Finally, the trial court ordered Husband to pay Wife $200 per week alimony in futuro . The trial court credited Husband $320 per month for an annuity payment assigned to Wife by Husband under a prior court order. Both parties appeal the trial court’s decree. Wife filed a notice of appeal on September 21, 1998. The notice named Wife as appellant, Husband as appel lee, and gave the addresses of both parties. It listed Husband’s attorney and named the tria l court, the trial judge, the number and file date of the judgment from which she appealed, and the court in which the appeal was filed. Wife’s attorney did not sign the notice of appeal but signed as surety fo r th e accompanying appeal bond. Subsequent ly, Wife fil ed a motion with the t rial court asking

that Husband be re

quired to provide Wife a copy of the tria l transcript. Wif

e’s motion propose

d that Wife pay Hu

sband one-half of the court report

er’s appearan

ce fee. The tria

l court ordered t

hat Wife be allow

ed to make a

copy- 3 -

of the transcript provided she paid “the per diem of the taking of the transcript and for the cost of the transcript itself” and that she furnish a copy of the transcript to Husband. On appeal, Husband argues that Wife failed to properly file her notice of appeal. Husband also claims that the trial court erred in granting a divorce to Wife. Both Husband and Wife challenge the trial court’s division of property and its alimony award. We address first Husband’s claim that Wife failed to properly her notice of appeal. Husband conte nds that Wife’s notic e is insufficient u

nder Rule 11.01 of

the Tennessee Ru

les o f Civi l Procedure and R ule 24 of the Tennessee Rules of Appellate Procedure because it fails to give the date and the name and signature of Wife’s attorney. Rule 11.01 of the Tennessee Rules of Civil Procedure states that “[a] n unsigned paper s hall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” Rule 3(f) of the Ten nessee Rules of Appellate Procedure state

s that a “notice of appeal shall specify the party. . .t aking th e appeal, shall designate the judgment from which relief is sought, a

nd shall name the c

ourt to which the a

ppeal is taken. An appeal shall not be dismissed for informality of form or title of the notice of appeal.” Wife’s notice of appeal names Wife as appella nt, designates the

number and file

date of the judgment appealed from, and names the court in

which the appeal was filed. Wife’s attorney did not sign the notice of

appeal, as required under Rule 11.01 of the Tennessee Rules of Civil Procedure but signed the ap peal bond acc ompanying the notice. Under these circumstances, the failure of Wife’s attorney to sign the notice of appealdoes not prevent th is Court from hearin

g Wife’s appeal

. Husband also argues that the tr ial court erred

in ordering Husba

nd to permit

Wife to make

a copy of the trial transcript, because the order allows Wife a copy of the transcript when she did not assist Husband in paying the court reporter’s appearance fee in the first place. Husband argues that the transcript became Husband’s attorney w ork product when Wife refused Husband’s request before trial to split the appearance fee. Under the trial court’s order, Wife could make a copy of the trial transcript if she paid “the per diem of the taking of the transcript and for the cost

of the transcript itself” and if she furnished

a copy of the transc

ript to Husband. Hu

sband points to

no mann er in which this ord er unfairly pr ejudices him. Moreover, Husband’s argument that the trial transcript is “work product” i s sophistic at best; a transcript of

a public proceeding such as trial cannot be deeme

d work product.- 4 -

See Tenn. R. Civ. P. 26.02; Memphis Pub. Co. v. City of Memphis , 871 S.W.2 d 68 1, 689 (Tenn. 1994) (work product materials must have a veil of confidentiality). Husba nd next contends that the trial court erred in granting the divorce to Wife. He maintains that Wife was ver bally abusive towa

rd him and his

family members. Husband argues that Wife failed to offer sufficient evidence of recent altercations between the parties for which Husband was at fault. Wife testified at trial that

Husband was verbally abusive to her and to the parties’ daughter. She stated that Husband’s abusive behavior occurred intermittently from the beginning of the p arties’ marriage up to the time of the parties’ separation. The parties’ adult daughter corroborated Wife’s allegations. In his testimony, Husband admitted that he may have occasionally “cussed” Wife. Clearly Wife proffered substantial ev ide nce of Husband’s verbal abuse. The trial court’s determination of fault turned on its assessment of the witnesses’ cre dibi lity. When the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity

to observe the witnesses in their manner and demeanor while testifying is in a far better position than this Court to decide that issue. See McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995). Based on our review of the evidence, we cannot conclude that the trial court erred in awarding the divorce to Wife. The decision of the trial court is affirmed on this issue. Husband and Wif

e bo th challenge the trial court’s division of the parties’ marital estate. Wife argues that the tr

ial court should ha

ve awarded her

the parties’ entire int erest in the marital home and surrounding property. She con t ends that such an award is necessary to offset the large amount of separate property owned by Husband. Wife argues that her age, lack of train ing and skills, and physical condition cause her to be le ss employable and t

o have a lower ea

rning capacity than Husband. Therefore, she maintains that the trial court should n ot ha ve assigned to her the parties’ indebte

dness on her car

and one-half of

the parties’ rem

aining debts. Husband argues that the tr ial court erred

in div iding the parties’ marita l property becau

se most of the property w

as either proper

ly classified as Husband’s separately-owned property or was acquired by gift f

rom Husband’s par

ents or relatives

. Tennessee Code Annotated § 36-4-121(c) requires the trial court to consider several factors in making an equitable division of marital property, including: (1) The duration of the marriage; (2) The age, physical and mental health, v ocati onal skills, employability, earning- 5 -

capacity, estat

e, financial liab

ilities and financ

ial needs of eac

h of the parties; (3) The tangible or intangible contribution by one (1) partyto the education, training or increased ea

rning power of the

other party; (4) The relative ability of each party for future acqu isitions of capital assets and income; (5) The contribution of each par ty t o the acquisition, preservation, appreciation or dissipation of the marital or s eparate property, including the contribution of a p arty to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or

wage earner to

be given the same w

eight if each party has fulfilled its role; (6) The value of the separate property of each party; (7) The estate of each party at the time of the marriage; (8) The economic circumstances of each party at the time the divisionof property is to become effective; (9) The tax consequences to each party; and (10) Such other facto

rs as are neces sary to consider t he equities betwe

en the parties. Tenn. Code Ann. § 36-4-121(c) (1 996). Appellate r eview of a division

of marital proper

ty is de novo upon the record with a pre sumption of the correctness of the trial court’s findings of fact. See Tenn.R.App.P. 13(d). The trial court’s division of property is altered on appeal only if the trial court misapplies the law or if the e vidence prepond

erates against th

e trial court’s f

actual findings. See Wade v. Wade , 897 S.W.2d 702, 715 (Tenn.App. 1994). In this case, the p

rimary asset in

the marital estate is the marital home and the surrounding property. The only other asset of significant value is the $70,000 certificate o f deposit which Husband inherited from his parents. Both parties argue that they should have been awarded s ole ownership

of the home. The trial court’s award to Wife of a life interest

in the marital home helps offset the trial court’s award of the $70,000 certific

ate of deposit to Hu

sband as his

separate property. The remainder of the marital property was essentially divided equally. Considering the evidence presented, we cannot conclude evidence preponderated against the trial court’s property division. The decision of the trial court is affirmed on this issue. Finally, Husband and Wife both contest the trial court’s award of alimony. Wife argues that the amount of the alimony aw ard is insufficient in light of her regular monthly expenses and Husband’s ability to pay. Wife contends that the alimony amount should be based upon Husband’s prior gross monthly income as a truck driver.- 6 -

Husband admits that he quit his job as a truck driver the day the parties separated, but argues that he can work as a

truck driver only

so long as his glauco

ma condition can be

controll ed. He argues further that his a

ge and limited educ

ation will likely

prevent him from finding employment witha salary as high a

s he received a

s a truck driver. Husband contends that the alimony amount is excessive in light of Wife’s work caring for the elderly woman after the parties’ separa tion. The factors relevant in making an award of alimony are similar to those considered in making

an equitable division of marital proper ty. See Tenn. Code Ann. §§ 36-4-121(c) (1996) and 36-5- 101(d)(1) (Supp. 1999); see also Dellinger v. Dellinger , 958 S.W.2d 778, 781 (Tenn.App. 1997). The need of the ob

ligee spouse

and the obligor spouse’s ability to pay are the most critical factors in awarding alimony. See Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn.App.1993). In addition, the relative fault of the par

ties in the breakup of the marriage may be considered. See Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn.App. 1988). The trial court is afforded wide discretion concerning the award of alimony , and an appellat e court should reverse the trial court’s findings only in instan ces i n which this discretion “has manifestly

been abused.” See Hanover v. Hanover , 775 S.W.2d 612, 617 ( Tenn.App. 1989); Ford v. Ford , 952 S.W.2d 824, 827 (Tenn.App. 1997). The fault for the breakup of the marriage and Wife’s need are factors favoring an

adequate alimony award. The trial court awarded the divorce to Wife, implicitly finding that Husband was at fault for the divorce. However, the amount of the m onthly alimony award leaves Wife with a $260.20 shortfall w

hen it is applied to h

er monthly expense

s. However, Husband’s abilit y to pay a greater amount of alimony is uncertain. Although Husband did not quit his job as a truck driver because of physical infirmity, he now testifies that

his glaucoma condition inhibits his

ability to drive a tr

uck for a living. H

e admits that the glaucoma is controlled by medication and that he is apparently still physically qualified to hold a license. The award of alimony presents a difficult issue. The evi d ence clearly supports the trial court’s implicit finding that Husband was at fault for the divorce. The fact that Husband quit his job

as a truck driver th

e day the pa

rties separated

suggests tha t it was motivated by a desire to avoid paying Wif e si gnif ica nt a lim ony. However, regardless of Husband’s original motivation for quitting his truck driver job,

the trial court wa

s required to dete

rmine Husband’s a

bility to pay alimony as of the date of trial. This determination depended in part on the trial court’s assessment of Husband’s- 7 -

credibility

on his ability

to wor k as a tr uck dri ver o r in ano the r po sit ion wit h co mpa rabl e pay. When the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity

to observe the witn

esses in their manner and demeanor while testifying is in a far better position than this Court to decide that issue. S ee McCaleb , 910 S.W.2d at 415 (Tenn. 1995). We must

accord great weight to the trial court’s determination of credibility. See id .; see also In re Estate of Walton v . Young , 950 S.W.2d 956, 959 (Tenn. 1997). From our review of the record, and in view of the high standard of review for an awa rd of alimony, we cannot conclude that the trial court’s award of alimony in this case amount e d to an abuse of discretion. The decision of the trial court is affirmed on this issue. The decision of the trial court is affirmed. Costs are taxed equally to both parties, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.