### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 5, 2003 Session
SALLY ANNE NIGRO v. VINCENT JOHN NI GRO Appeal from the Circuit Court for Williamson County No. II-98294 Donald P. Harris, Judge

No. M2002-00134-COA-R3-CV - Filed July 11, 2003

In this divorc e case

the husba nd appeals the grant of the divorce to the wife, the division of the marital property, the a

ward of alimony to the wife, the trial court’sfailure

to make the wife pa

y child support, a nd its fail ure to allow the hu sband to r elocate out of the

state with

the son. For her

part, the wife seeks a larger por tion of the husband’s retirement pay and the proceeds of the marital home. We affir m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W ILL IAM B. C AIN , J., joined. P ATRIC IA J. C OTT RELL , J., n ot par tici patin g. Nicholas D. Hare, Nashville, Tennessee, for the appellant, Vincent John Nigro. Joanie L. Abernathy , Franklin, Tennessee, for the appellee , Sally Anne Nig ro. OPINION
I. M ARRIAGE AND S EPARAT ION
Vincent and Sally Nigr

o married in 1981. Mr. Nigro g raduated from the

Naval Ac ademy

in 1973. He retired from the military in 1995. Ms. Nigro is a

teache r. The pa rties moved freque

ntly during the marr

iage, but at eac

h station Ms . Nigro

managed to find a job and earn an income. They have two sons. The oldest was eighteen at the time of the trial and in his senior

ye ar of hig

h school. He stayed with his mother after the separation. The y oungest son was fifteen and he elected to stay with his father.-2-

Both par ties had s ome asse

ts at the time

of their marriag e, and the y a ccumula ted a mode st estate before they

separated. They

continued to work after the separation, although a t the time of the trial Mr. Nigro h ad lost his j ob as a ROTC instruct or in the Williamson Cou nty School Sy stem.
Ms. Nigro f

iled for d ivorce in May

of 1998. A

fter tha t date, the recor

d is a blur of

motions, amended pleadings, orders substituting counsel, and orders dealing with the procedur al posture of the case. Despite a

ll the smoke

and noise , the cau se finally came on to be heard on January 25, 2000. At the beginning of the trial, the court g ranted Ms. Nigro’s motions in limine (1) prevent ing Mr

. Nigro from test

ifying about Ms. Nig

ro’s fa ult because he had not filed a counter-c laim and had not raisedher ill conduct as a defense, and (2) preve nting Mr. Nigro f

rom offe ring an y evidence

at all at the trial because he had failed to appea r for his discovery de

position. After the hearing the court granted Ms. Nigro a divorce , awarded custody of the children to her, divided the marital pr op er ty, and ordered Mr. Nigro to pay alimony in futuro. Mr. Nigro moved for a new trial or in the alternative to alter or amend. On April 24, 2000 th e trial judge granted Mr. Nig ro a new trial on all issues except for the divorce and the aw ard o f attorney’sfees to Ms. Nigro. After severa l more roun ds of moti ons, contempt petitions, and su bstitu ted counsel, the remaining issues were tried bef ore a different judge on Aug ust 9 and 10, 2001. This hearing resulted in the final decree which is the primary subject of the appeal before us.
II. T HE D IVORCE Mr. Nigro also contests the award of the divorc e to Ms. Nigro after the hearing on January 25, 2000 at which he could not testify. His g rounds for reversing the awar d of the divorce are twofold: he contends that the sanction disallowing his own testimony was too har sh, and that Ms. Nigro did not prove grounds that would entitle her to a divorce.
Mr. Nigro does not cite any authority for his position that the trial judge erred in not allowing him to testify at the

January 2000 hea ring. We note that Rule 37.04 , Tenn. R. Civ. P., aut horizes a trial judge to “makesuch orders in regard to the failure as are just” when

a party f ails to appear for his deposition. The range of sanctions for failure to cooperate in discovery includes dismissal of the complaint, Hodges v. Tennessee Attorney General , 43 S.W.2d 91 8 (Tenn. Ct. App. 20 00); Morris v. State , 21 S.W.3 d 196 (Tenn. Ct . App. 199 9); gra nting a d efault ju dgment, Yearwood, Johnson, Stanton & Crabtree, I

nc. v. Fox land Dev . Venture , 828 S.W.2d 412 (Tenn. Ct. App. 1991); and refusing to allow the witness to testify at trial, Strickland v. Strickland , 618 S.W.2d 496 (Tenn. Ct. App. 1981). The tria

l judge’s discretion in imposing sanctions for discovery misconduct will not be disturbed in the absence of an affirmative showing of abuse. Brooks v. United Uniform Co. , 682 S.W.2d 913 (Tenn. 1984). Mr. Nigro does not show why it was an a

buse of discretion for the trial judge to disallow his testimony; therefor e we affirm the trial judge’s orde r.
We also note that Mr. Nigro does not tell us what his testimony would have be en or how

it would have changed the result of the first hearing. Tennessee Rules of Evidence 103 provides that-3-

an order excluding evidence will not be a ground for er ror unless a substantial right is affected and the substance of the evidence is made known to the court. Since the cour t grant ed a new trial on a ll the issues decided after that January 2000 hearing except for the divorce and the wife’s attorney ’s fees, we would need to know what Mr. Nigro would have sa id at the trial th at would have had a bearing on these issues. Since we do not have the benefit of that evidenc e, any relief b ased on it s exclusion is precluded by Rule 103.
As to the grounds for the divorce, Ms. Nigro pr oved that Mr. Nigro had a volatile temper and ventedhis anger at her in public places and in fr ontof other individuals. He called her vile names and threatened to use a shotgun or baseball bat on h er. On one occas ion in January of 1995, Mr. Nigro threatened to kill Ms. Nigro, and got so vi olent tha t the p olice

took h im int o cus tody . We think that testimony supports the trial judge’ s finding that Mr. Nigro had been guilty of inappr opriate marital conduct. See Schwalb v. Sc hwalb , 282 S.W.2d 661 (Tenn. Ct. App. 1955).

III. A LIMONY , A TTORNEY ’ S F EES , AND C HILD S UPPOR T
At the end of the first hearing in January of 2000, the court awarded a $13,793.90 judgment in favor of

Ms. Nigro for her attorney ’s fees. In the fina l decree of divorce, the court awarde d Ms. Nigro an additi onal $ 17,675.00 as alimony in solido to cover her attorne y’s fee s from June 2000 throu gh the trial on August 10, 2001. Mr. Nigro a sserts tha t he should

not be re quired to

pay these fees because Ms. Nigro is as capable of paying them as he is. For her part, Ms. Nigro asse rts that Mr. Nigro should also pa y the $11,623.60 in fees she incurred between the first trial and June of 2000, and the fee s she will h ave to pa y in defending this a

ppeal.
The applicable standards governing the award of attorney ’s fees have be en summar ized in Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995):

Attorney fee awards are trea

ted as alimony. Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. App. 1988). In determining whe ther to award attorne y’s fees , the trial court should again consider the releva nt factors in T.C.A. § 36-5-101(d)(1). Houghland v . Hough land , 844 S.W. 2d 619, 623 (Tenn. App. 1992). Where the wife demonstrates that she is financially unable to afford counsel, and where the husband has the ab i lity to pay , the court may pr operly orde

r the husband to pay the wife’ s attorney fees. Id. ; Harwell v . Harwell , 612 S.W.2d 182, 185 ( Tenn. Ap p. 1980); Palmer v. Palmer , 562 S.W.2d 83 3, 839 (Tenn. App. 1977). These awards are within the sou n d discretion of the trial court, and unless the evidence p reponderates agains tth e award, it will not be disturbed on appeal. Lyon v. Lyon , 765 S.W.2d 759, 762-63 (Tenn. App. 1988).-4-

Mr. Nigro a

rgues t hat Ms. Nigro makes more money than he does, therefore her proof fails to show her

need an d his abilit

y to pay . But this view of h is ability to pay concen trates e xclusively on his current income. At the time of the first award, he had a job, and

there is no proof th at he is now unemployable. I

n addition, he received a substantial amount of property in the fina

l decree, a factor to be considered in an alimony award. See Tenn. Co de Ann. § 36-5-101(d)(H). I n view of the broad dis cretion

given to trial judg es in thes e matters, we are not persu aded to

alter the allocation of attorn ey ’s feesordere d in the tri al court

. The sameconsiderations persuade us to deny any furthe

r relief to Ms. Nigro. Considering the division of

marital p roperty and the respective incomes of the parties we believe she should pay the remaining fees incurred in the trial c ourt andon appeal. See Lindsey v. Lindsey , 976 S.W.2d 175 (Tenn. Ct. App. 1997).
Mr. Nigro al so ch alleng es the court’s ord er requ iring him to pay

alimony to Ms. Nig

ro to offset the child support

she should

be required to pay

under the Child Support Guidelines. Ms. Nigro ass erts that the court should have ordered Mr. Nigro to pa y child support to her. These issue s al l addressthemse lves to the discretion of the court and involve some of the considerations we ha ve alread y a ddresse d. We do not t

hink the c ourt abus ed its disc retion in t hese mat ters.
IV. T HE M ARITAL P ROPERTY
The parties raise multiple issues about the division of the marital property. T he final decree makes some specific rulings on the larger items. After ordering the marital home sold, the court ordered the equit y sp lit 75% to Mr. Nigro and 25% to Ms. Nigro. But the cour t required Mr. Nigro to pay numerous debts fr

om his share.
Eachof the pa

rties had a retire ment acc ount ge

nerate d from the

ir employ ment in the

public school sys tem. I

n addition , Mr. Nig

ro draw s a

pension f rom his Navy ser

vice. The court awarded the retirement accounts to the individuals and awarded Ms. Nig ro 31.4% of the Navy pension. Mr. Nigro asserts that the retirement accounts should have been divided in the sa me p roport ion as the other ma rital ass ets, 75% t

o him and 25 % to Ms. Nig ro. Alter natively , Mr. Nig

ro asser ts that Ms. Ni gro’s share of his Navy pension should have been 30.7% rather than 31.4%. Ms. Nig ro a ssert s that the Navy pension should have

been divi ded equa

lly. Without being sp ecif ic about how the marital debts should have been divided, Mr. Nigro asserts that the trial cou

rt’s allo cation of

the debts was inequitable. Ms. Nigro asserts that the court erre d in the division of the equity in the marital home.
We note that

neither party

complied with Rule 7 of the Court of Appeals which requires an orderly tabulation of the value of the maritalproperty a nd the party to whom the

individual items of1 Be latedly, the appel lant did fi le a t abulat ion of s orts s howing s ome of the v alues and to whom some o f th e pro perty was a warded. But the l ist is s o incomplet e as to be pract ical ly us eless in t his cour t. For inst ance, t

he li st s hows a $78,000 IRA listed as Mr. Nigro’s but no designa tion a s to whom i t was a warded. This ite m is not mentione d in the fin al decree. The same is true of an $180,000 item sho wn as P hilip M orris sto ck. T he co urt ma y have c onsid ered this
as M r. Nigr o’s sep arate p rop erty, but e ven if that is so , a party’s separate property is rel evant to th e divi sion of the mari tal estate. See Tenn. Cod e Ann. § 36-4-121(c)(6).

2 Specific and serious harm to t he child incl udes, but is not limit ed to, the foll owing: (1) If a pa rent wis hes t o tak e a chi ld wi th aser ious medica l probl em to a n are a wher e no adequat e treat ment is readil y avai lable; (2) If a par e nt wishes to take a child wit h specific educati onal requirements to an area wit h no accep table educ ation facilities; (3) If a par ent wishe s to relo cate a nd tak e up r esid ence wit h a per son wi th ahis tory of ch il d or dom estic abuse or w ho is currently abusing alco hol or other d rugs; ( 4) If the child relies on the pa rent no t reloca ting who pro vides emo tional su ppo rt, nurtu ring a n d devel opment such tha t re moval would resu lt in s evere emoti onal detr iment to t he chi ld; (5) If the custo dial p arent is e motio nally dis tur bed or dependen t s uch t hat the cust odial paren t i s not (con tinued ...) -5- propert y were awarded. 1 Without this tabulation it is nearly impossible to arrive at what would be an equitable division of the marital pro perty. The f inal dec ree doe s not put va

lues on the

assets awarded to either party, so we

would have to dig th ose values out of the record and weig h the parties’ conflic ting est

imates of value. We

are not inclined t

o do that. With the disc

retion given to the trial judges in making a division of the marital estate, see Hanover v. Hanover, 775 S.W.2d 612 (Tenn. Ct. App. 1989), the burden is on the party dissatisfied with the division to show how the trial judge abused that discretion. We think both parties have failed to do that in this case.
V. P ERMISS ION TO R ELOCATE
Mr. Nigro requested permission to permanently relocate outside the state of Tennessee with his younge

r son, Andy. The c ourt deniedthat req uest pending further orders of the cour t, until the son’s relationship had been established with Ms. Nigro or until a good fa ith effort had been made to establish the relationship. Parental relocation is governed by statute in Tennessee. See Tenn. Code Ann. § 36-6-108. The process set out

in the stat

ute require s an ag

reemen t of the pa rties or c ourt appr

oval. Thiscase falls under section (d) which governs the situation where the pa rents are not spending substantia lly equal amounts of time with the child, and the parent spending the gr eater amount of time with the child wishes to relocate. The legislature has proclaimed that

that par ent shall b e allowe d to reloc ate unless the cour

t finds one

of a numbe

r of facts the leg

islature cit ed as suf

ficie nt to deny the relocation. See Tenn. Code Ann. § 36-6-108(d)(1)-(6). One of the reasons to deny

relocation is “The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of

a change of custody .” Tenn. Code Ann. § 36-6-108(d)(2). The statute g oes on to give some examples of “specific and serious harm.” 2 None of the exa mples incl

udes the l oss2 (.. .cont inu ed) cap able of adequat ely par enti ng the c hil d in t he absence of support syst ems curren tly in pl ace in this sta te, and su ch su pport s ystem is not a vail able at t he propos ed rel ocati on si te; or (6) If the pro pos ed re locatio n is to a for eign count ry w hose pu bli c poli cy does not normall y enf orce the visitation rig hts of no n-c usto dial par ents, which does not have an adequatel y fu ncti oning l egal sys tem or

whi ch ot herwi se pr esen ts a subs tant ial ris k of s pecif

ic a nd ser ious harm t o the chi ld. -6- of a chance to estab lis h a relationship with a parent. But we note that the examples given in the statute are non-exclusive; that is, specific and serious harm may inc lude things other than the ones listed.
We think thatit would am ount to spe cific and seriousharm for the child to lose the chance to beco me reconciled with his mother. It may be that reconciliation is not possible, but the trial judge’s order deny

ing the right to relocate is only temporary. A

fter the p arties have given reconciliation a chanc e, (which, by now, has s urely

occurr ed), Mr. Nigro ma

y st art the relocat ion process over again.
The judgment of the court below is affirmed. The cause is remanded

to the Circuit Court of Williamson County for any further proceedings necessary . Tax the costs on appeal to the app ellant, Mr. Nigro.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.