IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
JANUARY 22, 2008 SESSION
DORIS P. WILLIAMS v. JIMMY D. WILLIAMS
An Appeal from the Circuit Court for Shelby County
No. CT-005319-02 Robert L. Childers, Judge
No. W2007-00109-COA-R3-CV - Filed July 28, 2008
This is a divorce case. During the course of the parties’ long-term marriage, the wife retired
from her job as a teacher because of multiple health problems. In the divorce decree, the wife was
awarded alimony in futuro. The husband filed a motion to alter or amend the judgment, which was
denied. The husband appeals the award of alimony in futuro, and the denial of his motion to alter
or amend. The wife asserts that this is a frivolous appeal. We affirm and find that this is a frivolous
appeal.
Tenn. R. App. P. 3 Appeal as of Right; Affirmed and Remanded
HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S.,
joined; W. FRANK CRAWFORD , J., did not participate.
Edward M. Bearman, Memphis, TN, for the Appellant/Defendant, Jimmy D. Williams.
Mitchell D. Moskovitz and Rachel L. Songstad, Memphis, TN, for the Appellee/Plaintiff, Doris P.
Williams.
OPINION
Defendant/Appellant Jimmy D. Williams (“Husband”) and Plaintiff/Appellee Doris P.
Williams (“Wife”) were married on November 10, 1966. Three children were born to the marriage,
and all are now adults. Both parties graduated from high school.
The parties separated on September 17, 2002. At that time, Wife was fifty-eight years old,
and Husband was fifty-nine years old. The next day, Wife filed a complaint for absolute divorce,
alleging irreconcilable differences, inappropriate marital conduct, and adultery by Husband, and
seeking alimony and attorney’s fees, both pendente lite and permanent. On October 4, 2002,
Husband filed an answer denying Wife’s material allegations against him. He also filed a counter-
complaint for divorce against Wife, alleging irreconcilable differences, inappropriate marital
conduct, and cruel and inhuman treatment or conduct by Wife toward Husband.
In May 2003, the divorce referee held a hearing on Wife’s request for pendente lite support.
At the hearing, Wife testified that she had worked full-time as a special education assistant with the
Memphis City School system, earning approximately $900 per month. She retired in 2002 because
of health issues. Wife said that she suffers from arthritis, diabetes, congestive heart failure, high
blood pressure, and loss of vision in her right eye.
Husband worked at a newspaper, and ultimately became the owner and publisher of a small
newspaper, the Memphis Silver Star News, and the owner of a ballroom business, the Silver Park
Plaza Candlelight Ballroom. He is also a practicing minister. Husband asserted that both the
newspaper and the ballroom operated at a deficit, and his 2002 income tax return showed a claimed
income of $17,000.
The testimony at the pendente lite hearing indicated that Husband was in charge of the
parties’ finances, paying for daily necessaries, housing, and most other bills. Wife testified that
Husband was secretive about his finances, and she knew nothing about Husband’s business bank
accounts.
Husband had several bank accounts for each business, with sole authority to write checks on
these accounts. In 2002, from one business account, Husband wrote numerous checks to himself,
or to cash, for “business expenses,” totaling $197,619. In addition, Husband wrote $42,550 in
checks to himself, or to cash, from other business accounts. Husband maintained that he used the
funds to pay “business expenses.” However, he was unable to recall, or to document, the specific
business expenses paid.
After the hearing before the divorce referee, the trial court entered an order setting forth
Husband’s support obligations pending the trial. The order required Husband to continue to pay
certain enumerated expenses. In addition, Husband was ordered to pay Wife $326 per month toward
her medical expenses and $225 per month toward her other expenses. Husband was also ordered
to pay $1,000 toward Wife’s attorney’s fees.
In July 2003, Wife filed a contempt petition against Husband, alleging that he had failed to
pay the pendente lite support ordered by the court. In February 2006, Wife filed a second contempt
petition against Husband.
The trial was held on April 24, 2006.1 While the appellate record does not contain a
transcript of the evidence, the trial court approved a Tenn. R. App. P. 24(c) Statement of the
Evidence.2 Much of the evidence presented to the trial judge echoed the evidence presented to the
divorce referee at the pendente lite hearing. The Statement of the Evidence outlined the evidence
presented at trial:
1
The attorneys in this appeal did not represent the parties in the trial.
2
The Statement of the Evidence was filed on May 15, 2007.
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5. On April 19, 2006, Husband filed a Local Rule XIV(C) affidavit
with the trial court stating that Husband drew a salary of
“approximately $18,000” in 2005 from Husband’s business. The
evidence shows that Husband is a successful business man. He owns
the Memphis Silver Star News, a newspaper, in addition to a
ballroom. The proof at trial showed that Husband’s business practice
consisted of regularly writing himself checks for cash from his
business. In 2005 Husband wrote himself over $200,000 worth of
checks from his company account. The memo line on said checks
simply referred generally to “expenses”. Husband testified during the
trial that he had documents and/or receipts regarding said expenses in
his briefcase, which was in the courtroom. Husband did not,
however, provide the trial court any receipts for said expenses.
Rather, Husband only had a handwritten list of alleged expenses.
Wife testified that Husband controlled the parties’ finances during the
marriage and was extremely secretive about his business dealings. At
trial, Husband admitted that the vehicle he was currently driving was
a late-model Cadillac Escalade.
6. The proof at trial showed that Wife had been disabled for two
years prior to trial and the only income she was receiving was
$454.00 per month in Social Security disability and $34.41 per month
from her Memphis City School retirement. The proof also showed
that she was having to live with her family because she could not
afford to live on her own, that she had no vehicle, and she was
required to rely upon her family to transport her. She had three (3)
surgeries in 2005, including a heart bypass, removal of a bone in her
spine, and total knee replacement. Wife had to liquidate an annuity
in her separate name to pay for her medical expenses, and in 2004 she
had to file for bankruptcy. Wife’s Local Rule XIV(C) affidavit
showed a deficit of approximately $1,000 per month. Wife testified
that Husband took her personal belongings, including a fur coat and
a hat, and sold them and he kept the money.
***
8. Wife introduced documents at trial from the Shelby County
Register’s Office showing that Husband and/or Husband’s Company
owned real property at 3015 Park Avenue, 3019 Park Avenue and 0
Park Avenue. Husband produced documentation showing that he had
obtained mortgages on 3015 and 3019 Park Avenue, which were
more than the value of the property. Husband produced no
documentation for 0 Park Avenue and denied owning said real
property. The trial court used the tax assessment from the Shelby
County Assessor’s Office to determine that 0 Park Avenue had a fair
market value of $19,200. The trial court awarded Wife one-half of
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the value of 0 Park Avenue, $9,560.00, and placed a lien on the
property in that amount to protect Wife’s one-half interest.
9. The evidence shows the parties owned a home at 5250 Marynelle
that they bought in the 1990s for $82,000.00. They sold the house
after the divorce was filed to a friend of the parties for $61,000.00.
The mortgage on the home at the time of sale was $56,537.00.
Husband told Wife that they were going to have to move from the
house because it was being foreclosed on. Husband testified that he
now rents the house from the friend who bought the house.
***
11. During the trial Husband was asked whether he had sexual
relations with another woman, other than Wife, during the marriage.
Husband responded, “it depends on what you call sex.” When
directed by the trial court to answer the question Husband denied that
he had sexual relations with another woman during the marriage. In
Husband’s Interrogatory Answers, filed with the trial court on January
7, 2003, Husband admitted to having sex with another woman during
the marriage. Husband also admitted to attempting to gain custody
of a young child through the Juvenile Court of Shelby County,
Tennessee, but denied that the child was born out of wedlock.
Rather, Husband testified that he felt sorry for the child and wanted
custody.
12. Husband testified that he had a high school education, and that
he was trained as a pastor and could work as a pastor in the future.
After the trial, on April 28, 2006, the trial court entered a final decree of divorce. In the final order,
the trial court declared the parties divorced and divided the marital property. It found that Wife was
disabled and in need of alimony in futuro, and that Husband had the ability to pay alimony in futuro.
Husband was ordered to pay Wife $1,000 per month, terminable only upon Wife’s death or further
orders of the trial court.3
On May 26, 2006, Husband filed a motion to alter or amend the judgment. The motion was
denied on January 3, 2007. From this order, Husband now appeals.
On appeal, Husband argues that the trial court erred in ordering him to pay $1,000 per month
in alimony in futuro to Wife, because he does not have the ability to pay. In addition, he contends
that the trial court erred in denying his motion to alter or amend the judgment, which also asserted
that he did not have the ability to pay the alimony.
3
As of the date of the final decree, Husband remained in arrears on his pendente lite support obligation, and
he was ordered to make a purge payment and continuing payments on the arrearage. Husband has not raised this as
an issue on appeal.
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Wife argues on appeal that Husband’s appeal is frivolous, and that she is entitled to her
attorney’s fees and other expenses of the appeal.
Findings of fact by a trial court, sitting without a jury, are reviewed under a de novo standard
with a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R.
App. P. 13(d) (2007). The trial court's conclusions of law are reviewed de novo with no presumption
of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).
In the instant case, Husband appeals the amount of alimony awarded, as well as the trial
court’s denial of his motion to alter or amend. The amount, if any, and type of alimony to be
awarded is within the sound discretion of the trial court in view of the particular circumstances of
the case, and such an award will not be altered on appeal absent an abuse of discretion. Lindsey v.
Lindsey, 976 S.W.2d 175, 180 (Tenn. Ct. App.1997). Moreover, a trial court's ruling on a motion
to alter or amend may be reversed on appeal only upon a finding that the trial court abused its
discretion. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003); Harris v. Chern, 33 S.W.3d 741,
746 (Tenn.2000). Thus, the standard of review for both issues raised by Husband on appeal is abuse
of discretion.
A trial court abuses its discretion when it applies an incorrect legal standard or reaches a
decision that is against logic or reasoning that causes an injustice to the complaining party. Williams
v. Baptist Memorial Hospital, 193 S.W.3d 545, 551 (Tenn.2006); Eldridge v. Eldridge, 42 S.W.3d
82, 85 (Tenn.2001). However, so long as reasonable minds can disagree as to the propriety of the
trial court’s discretionary decision, it will be upheld. Eldridge, 42 S.W.3d at 85. Under the abuse
of discretion standard, the appellate court is not permitted to substitute its judgment for that of the
trial court. Williams, 193 S.W.3d at 551.
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In making a decision on alimony, the trial court must consider myriad factors.4 Of these, the
two factors that are considered the most important are the disadvantaged spouse's need and the
obligor spouse's ability to pay. Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002); Bogan
v. Bogan, 60 S.W.3d 721, 730 (Tenn.2001); Sullivan v. Sullivan, 107 S.W.3d 507, 510 (Tenn. Ct.
App.2002). On appeal, Husband questions the trial court’s finding on Wife’s need for alimony, as
well as his ability to pay.
Because there is no transcript of the trial in this case, we rely on the Statement of the
Evidence approved by the trial court, excerpted above. We also rely on the technical record in this
cause.
Husband argues first that the trial court erred in assessing Wife’s need for alimony in futuro.
While Husband does not dispute that Wife was forced to stop working due to multiple health
problems, he euphemistically describes her circumstances as “living free of charge in her daughter’s
home” while receiving Social Security disability and retirement benefits each month. In his
summary of Wife’s monthly expenses, Husband removes from them any “expenses associated with
4
Under T.C.A. § 36-5-121(i) (2005), relevant factors to be considered in deciding whether to award
alimony include:
(1) The relative earning capacity, obligations, needs, and financial resources of
each party including income from pension, profit sharing or retirement plans and
all other sources;
(2) The relative education and training of each party, the ability and opportunity
of each party to secure such education and training, and the necessity of a party
to secure further education and training to improve such party's earning capacity
to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical
disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment
outside the home because such party will be custodian of a minor child of the
marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property as defined in §
36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and
tangible and intangible contributions by a party to the education, training or
increased earning power of the other party;
(11) The relative fault of the parties in cases where the court, in its discretion,
deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between th e parties .
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her housing since she lived with relatives,” on the apparent assumption that this Court should require
Wife to continue to live with her daughter “free of charge” for the rest of her life.
After reviewing the record, we find that it fully supports the trial court’s characterization of
Wife’s circumstances, specifically, that at the time of trial, she was disabled, was receiving less than
$500 per month in disability and retirement benefits, was forced to live with family because she
could not afford to live on her own, was forced to rely on family for basic transportation because she
could not afford a car, and had been forced to declare bankruptcy by her ongoing medical expenses
and Husband’s failure to pay the court-ordered pendente lite support.
Husband also contends that the trial court erred in assessing his ability to pay alimony. On
appeal, Husband emphasizes his assertions at trial that his newspaper and ballroom businesses were
operating at a loss, that he was heavily in debt, and that he earned less than $1400 per month. He
decries the Statement of the Evidence approved by the trial court as “its own version” of the
evidence. He asserts that the Statement of the Evidence includes conclusory statements such as “the
evidence shows that Husband is a successful business man,” when the evidence showed that he is
not. Husband also questions the relevance of certain evidence, such as the trial court’s finding that
Husband took some of Wife’s personal belongings, including a fur coat, sold them, and kept the
proceeds. He contends that such evidence shows merely that the parties’ relationship was
“unhealthy.” He maintains that requiring him to pay $1,000 a month in alimony in futuro “will force
him into a state of indentured servitude.”
From our review of the record, it is clear that the trial court did not buy Husband’s testimony.
Neither do we. The evidence showed that Husband is able-bodied and capable of generating
substantial income. The evidence also showed that Husband repeatedly engaged in time-honored
methods of disguising income and hiding assets from Wife, i.e., putting proceeds from his business
ventures into separate bank accounts and writing well over $200,000 in checks to himself or to
“cash,” purportedly to pay unspecified “business expenses.” Moreover, Husband paid substantial
monies to his paramour and for the benefit of at least one child fathered with his paramour. While
Wife has no vehicle, Husband has several, and even purchased one for his paramour. Far from mere
evidence of an “unhealthy” marital relationship, this evidence shows that Husband has far more
income than he will admit, and that he engaged in behaviors that are directly relevant to the issue of
his ability to pay alimony. Thus, we find that the record fully supports the trial court’s finding that
Husband has the ability to pay $1,000 per month in alimony in futuro to Wife.
Viewing the record as a whole, we find no abuse of discretion in the trial court’s award of
alimony in futuro to Wife. Likewise, we find no abuse of discretion in the trial court’s denial of
Husband’s motion to alter or amend the judgment.
Wife’s sole issue on appeal is whether the present appeal by Husband is frivolous. “An
appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of success.”
Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001). Tennessee Code Annotated §
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27-1-122 outlines the damages the appellate court may award against a party who brings a frivolous
appeal:
When it appears to any reviewing court that the appeal from any court
of record was frivolous or taken solely for delay, the court may, either
upon motion of a party or of its own motion, award just damages
against the appellant, which may include, but need not be limited to,
costs, interest on the judgment, and expenses incurred by the appellee
as a result of the appeal.
T.C.A. § 27-1-122 (2000).
In the case at bar, although the record includes a transcript of the pendente lite hearing before
the divorce referee, there is no transcript of the trial. Thus, we have only the trial court’s Statement
of the Evidence. While Husband questions the trial court’s findings of fact, he gives this Court an
appellate record with little to support his argument. The party raising an issue on appeal is obligated
to give the appellate court a record that is sufficient for an appropriate review of the issue raised.
Tenn. R. App. P. 24 (2007); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). On
appeal, “we must assume that the record, had it been preserved, would have contained sufficient
evidence to support the trial court’s factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.
Ct. App. 1993). An appeal in which the appellate court’s ability to address the issues raised is
undermined by the appellant’s failure to provide an adequate record may be deemed frivolous.
Young v. Barrow, 130 S.W.3d 59, 67 (Tenn. Ct. App. 2003). Moreover, the issues raised by
Husband on appeal turn largely on the trial court’s determination of the parties’ credibility, which
apparently was highly unfavorable to Husband. This Court, of course, is required to afford great
deference on appeal to the trial court’s determinations on the witnesses’ credibility. Cottingham v.
Cottingham, 193 S.W.3d 531, 538 (Tenn. 2008). Moreover, as noted above, the issues raised by
Husband on appeal are reviewed for an abuse of discretion, a notably high standard of review. Any
objective review of these factors would cause a reasonable person to conclude that Husband’s appeal
had “no reasonable chance of success.” Lovelace v. Owens Illinois, Inc., 632 S.W.2d 553, 555
(Tenn. 1982). Finally, the record clearly shows that Husband has consistently flouted the trial court’s
order to pay pendente lite support to Wife. All of this leads inexorably to the conclusion that
Husband’s appeal is frivolous and was undertaken solely to delay payment of the spousal support
he is obligated to pay. As our Supreme Court has stated, “[s]uccessful litigants should not have to
bear the expense and vexation of groundless appeals.” Davis v. Gulf Insurance Group, 546 S.W.2d
583, 586 (Tenn. 1977).
Finding Husband’s appeal to be frivolous under Tennessee Code Annotated § 27-1-122, we
award Wife her reasonable damages incurred as a result of this appeal, including but not limited to
interest on the judgment against Husband for any arrearages, and her attorney’s fees, costs, and
expenses. The cause is remanded to the trial court for a determination of Wife’s damages.
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The decision of the trial court is affirmed, and Husband’s appeal is deemed frivolous under
Tennessee Code Annotated § 27-1-122. The cause is remanded for further proceedings not
inconsistent with this Opinion. Costs of this appeal are assessed to the Appellant, Jimmy D.
Williams, and his surety, for which execution may issue if necessary.
__________________________________________
HOLLY M. KIRBY, JUDGE
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