John Wesley Campbell v. Sheila Darlene Campbell

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 29, 2006 Session

JOHN WESLEY CAMPBELL v. SHEILA DARLENE CAMPBELL

Appeal from the Chancery Court for Coffee County
No. 03-158 John Wiley Rollins, Chancellor

No. M2005-00288-COA-R3-CV - Filed on August 8, 2006

This is an appeal from a divorce action in which the Appellee, Sheila Darlene Campbell (Ms.
Campbell), was awarded 73.6 percent of the parties marital property together with alimony in solido
in the amount of $500.00 per month for a period of five years. The Appellant, John Wesley
Campbell (Mr. Campbell) has appealed both the division of the marital assets and awarding of
alimony. Ms. Campbell appeals the refusal of the trial court to require that Mr. Campbell pay her
attorneys' fees and alleges the trial court erred in equally dividing the court costs. We modify the
judgment of the trial court to delete the requirement that Mr. Campbell pay alimony in solido and
affirm the trial court in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, as Modified

DONALD P. HARRIS, SR. J., delivered the opinion of the court, in which DAVID R. FARMER and
HOLLY M. KIRBY , JJ, joined.

Eric J. Burch, Manchester, Tennessee, for the Appellant, John Wesley Campbell

Jeffrey D. Ridner, Tullahoma, Tennessee, for the Appellee, Sheila Darlene Campbell

OPINION

I. FACTUAL BACKGROUND

This is a divorce action between John Wesley Campbell, born June 7, 1957, and Sheila
Darlene Campbell, born March 26, 1961. The parties were married on May 19, 1979, and have two
children, Jonathan Drew Campbell, born August 23, 1985, and Amanda Leigh Campbell, born
August 28, 1983. Drew is now at the University of Tennessee and Amanda is at David Lipscomb
University. The parties separated on March 7, 2003.

Mr. Campbell is employed at Arnold Engineering Development Center (AEDC) where he
is Chief of Intelligence with a base income of $86,000.00 per year. There is no higher position to
which Mr. Campbell can be promoted at AEDC but he periodically receives step raises of
approximately $1,500.00 per year, the next to occur in 2006. He also participates in an employee
savings plan where AEDC will match up to five percent of his income that he saves. Previously, he
had enlisted in the United States Air Force on August 1, 1975 and retired as a Captain in 1997 with
twenty-two years service. Mr. Campbell receives $26,000.00 annually in retirement benefits for his
Air Force service and $2460 annually in disability benefits. Ms. Campbell is a realtor in the
Tullahoma, Tennessee, area. She became a real estate agent in 2000 and, in the three years prior to
2004, earned an average of $51,000 annually. In 2004, at the time of the trial, she was on track to
earn approximately $75,000.00 during that year. She works largely on a commission basis and
receives no benefits such as paid vacations, sick leave or retirement benefits. She will be required
to purchase her own medical insurance as a result of the divorce.

When the parties were first married, Ms. Campbell had just graduated from high school. She
moved to Blytheville, Arkansas, where Mr. Campbell was stationed in the Air Force. She began
working as a dental assistant earning little more than the minimum wage. In 1980, Mr. Campbell
was transferred to Keesler Air Force Base in Mississippi. Ms. Campbell moved there with him and
continued working until shortly before their first child was born. The parties agreed that she should
stay at home and focus on raising the children. While stationed at Keesler, Mr. Campbell was able
to earn an associate’s degree from Jefferson Davis Community College. He was then selected for
the Airman’s Education and Commission Program which allowed Air Force personnel to attend
college on a full-time basis while receiving their regular pay. The parties moved to Starkville,
Mississippi, where Mr. Campbell enrolled in Mississippi State University and received a bachelor’s
degree in aerospace engineering. During that time, the parties second child, Drew, was born.

In 1987, the family moved to Wright-Patterson Air Force Base in Ohio. Ms. Campbell began
attending night classes at Sinclair Community College in Dayton, Ohio, where she obtained an
associate’s degree. Thereafter, she attended Wright State to obtain her bachelor’s degree but
withdrew when Mr. Campbell was transferred to AEDC and the parties moved to Coffee County,
Tennessee. Ms. Campbell attempted to transfer to Middle Tennessee State University but was
confronted with losing several credited classroom hours and has not pursued her education further.
Mr. Campbell received a master’s degree in aviation systems engineering from the University of
Tennessee Space Institute in 1994.

In 1998, Mr. Campbell developed a relationship with a young female employee of AEDC.
When Ms. Campbell discovered the relationship, he discontinued it for a time but resumed the
relationship in late 2001. The parties separated in March 2003. On March 28, 2003, Mr. Campbell
filed a complaint for divorce. Ms. Campbell filed an answer and counter-complaint on May 5, 2003.
The case was tried on August 31, September 1, and October 8, 2004. The trial court rendered its
decision on December 7, 2004, and a Final Order of Divorce was entered January 10, 2005.

In the Final Order of Divorce, Ms. Campbell was granted the divorce on the ground of
inappropriate marital conduct. She was awarded property with a value of $373,349.72 according to
our calculations. Mr. Campbell was awarded property with a value of $133,922.28. Mrs. Campbell

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was also awarded 40.9 % of Mr. Campbell’s Air Force retirement benefits which will result in her
receiving $886.17 per month. In addition, Mr. Campbell was ordered to pay alimony in the amount
of $500.00 per month for a total of five years. Each of the parties was ordered to pay their individual
attorneys’ fees and the court costs were divided equally between the parties.

Both parties have appealed. Mr. Campbell alleges the property division was inequitable and
that the trial court erred in awarding Ms. Campbell alimony. Ms. Campbell alleges the trial court
erred by failing to require Mr. Campbell to pay her attorneys’ fees and requiring her to pay one-half
of the court costs.

II. STANDARD OF REVIEW

Our standard of review of a trial court sitting without a jury is de novo upon the record. Tenn.
R. App. P. 13(d) (2004); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995) . A
presumption of correctness attaches to the trial court's findings of fact, unless the evidence in the
record preponderates against them. Tenn. R. App. P. 13(d). However, we review the trial court's
conclusions of law under a pure de novo standard without any presumption of correctness. Id.;
Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) .

Because the trial judge is in a better position to weigh and evaluate the credibility of the
witnesses who testify orally, the weight, faith, and credit to be given to any witness's testimony lies
in the first instance with the trier of fact, and the credibility accorded will be given great weight by
the appellate court. In re Conservatorship of Moore, 2005 Tenn. App. LEXIS 188, at *5, No.
W2004-01828-COA-R3-CV, 2005 WL 729185, at *2 (Tenn. Ct. App. 2005) (no perm. app. filed)
(citing In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997)) . Thus, we will not
re-evaluate the trial court's assessment of a witness's credibility absent clear and convincing evidence
to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) .
III. ANALYSIS

In the case before us, the trial judge did not make findings with regard to the value of the
parties’ marital property. Based upon our view of the best evidence with regard to value, the items
of property, their value and the spouse to whom they were awarded may be summarized as follows:

Property Value Awarded husband Awarded wife

Marital residence $200,000.00 $200,000.00
Husband's residence $15,000.00 $15,000.00
Husband's savings acct. $14,689.28 $14,689.28
Wife's checking acct. $3,153.70 $3,153.70
Wife's savings acct. $47,678.02 $47,678.02
Thrift savings plan $66,890.00 $66,890.00
Roth Acct.-Wife $15,361.00 $15,361.00
Roth Acct.-Husband $12,498.00 $12,498.00

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Safeco Acct.-Wife $1,693.00 $1,693.00
Safeco Acct.-Husband $1,671.00 $1,671.00
Wife’s IRA Acct. $23,464.00 $23,464.00
2001 Mazda Miata $12,674.00 $12,674.00
2002 Ford Ranger $5,500.00 $5,500.00
2002 Nissan Altima $15,000.00 $15,000.00
Personal Property $35,000.00 $5,000.00 $30,000.00
Transfer to Children $37,000.00 $37,000.00

Total $507,272.00 $133,922.28 $373,349.72

This list includes $37,000.00 the trial court found Ms. Campbell had conveyed to accounts held
jointly with her children during the pendency of the divorce in violation of the temporary injunction
issued pursuant to Tennessee Code Annotated section 36-4-106(d). This sum was awarded to her
in the Final Order of Divorce. Based upon our view of the property division, 26.4 percent of the
parties marital property was awarded Mr. Campbell and 73.6 percent was awarded Ms. Campbell.

Tennessee Code Annotated section 36-4-121 authorizes courts with divorce jurisdiction,
upon request of either party in a divorce action, to equitably divide or distribute the marital property.
Tenn. Code Ann. § 36-4- 121(a)(1) (2004). In making an equitable division, the trial court shall
consider all relevant factors, including any of those listed in section 36-4-121(c) . Flannary v.
Flannary, 121 S.W.3d 647, 650-51 (Tenn. 2003) . Section 36-4-121(c) sets forth the following
factors:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability, earning capacity,
estate, financial liabilities and financial needs of the parties;

(3) The tangible or intangible contribution by one (1) party to the education, training or
increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital assets and income;

(5) The contribution of each party to the acquisition, preservation, appreciation, depreciation
or dissipation of the marital or separate property, including the contribution of a party 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 weight 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;

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 (8) The economic circumstances of each party at the time the division of property is to
become effective;

(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale
of the asset, and other foreseeable expenses associated with the asset;

(10) The amount of social security benefits available to each spouse; and

(11) Such other factors as are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-4-121(c) (2004). "A division is not rendered inequitable simply because it is
not precisely equal, or because each party did not receive a share of every piece of marital property."
Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001); Kinard v. Kinard, 986 S.W.2d 220, 230
(Tenn. Ct. App. 1998). . Trial courts are granted broad discretion when dividing the marital estate,
and such decisions are "entitled to great weight on appeal." Watters v. Watters, 959 S.W.2d 585, 590
(Tenn. Ct. App. 1997). Appellate courts will generally defer to a trial court's division of property
unless it is inconsistent with the factors enumerated in section 36-4-121(c) or is against the weight
of the evidence. Id.

While the trial court did not articulate which of the factors set forth in Tennessee Code
Annotated, section 36-4-121(c) were important to its division of marital property, we are of the
opinion two of them support the trial court’s determination. First is the tangible or intangible
contribution of Ms. Campbell to the education, training and increased earning power of Mr.
Campbell. As stated in the brief filed by the Appellee, she sacrificed her own educational
opportunities in order to accompany Mr. Campbell on his various assignments with the Air Force,
raise the parties’ children and be a homemaker for the family. During several of his assignments he
was able to advance his education and now has a master’s degree in aviation systems engineering.
Virtually all of his college education appears to have been obtained during the marriage of these
parties.

The second factor we deem to support the division of property made by the trial court is the
economic circumstances of the parties. As argued by counsel for Ms. Campbell, Mr. Campbell has
a stable and relatively secure income from his employment with AEDC. He has ample benefits,
periodic step raises and an employer-matching savings plan. Ms. Campbell’s income is subject to
economic conditions and the vagaries of the local real estate market. While she has the potential to
earn the greater income of the two, historically she has not and that potential may not only be
interrupted by economic conditions but also by illness or disability. She has no medical insurance,
retirement or disability benefits provided by her employment and, accordingly, needs a greater
economic safety net than Mr. Campbell. Because, in our view, the division of property is consistent
with the factors set forth in Tennessee Code Annotated section 36-4-121(c), we affirm the division
made by the trial court.

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 Appellant next challenges the award of alimony made by the trial court. The trial judge, in
awarding alimony, stated as follows:

The most contentious issue in this litigation is the need for alimony. The
testimony reflects that after Mrs. Campbell raised her children to a certain age that
she started working for Lewis Orr Realty then First Choice and now Joe Orr. The
records reflects (sic) that in 2003, which she testified, was a very bleak year, she
made over fifty thousand dollars ($50,000.00) and appears to be on a track this year
to make some where in the range of seventy five thousand to eighty thousand dollars
($75,000.00). Mrs. Campbell testified extensively that while her husbands present
annual income is approximately one hundred fourteen thousand dollars
($114,000.00), that her income was subject to the whims of the real estate market
with all its uncertainties and that he had a guaranteed income no matter the whims
of the business world. If one looks at the long view it appears the reality is that while
Mr. Campbell’s income is fixed with the exception of raises and cost-of-living
increases. In fact it is Mrs. Campbell who has the potential to earn the greater income
of the two.

The undersigned notes that under cross-examination Mrs. Campbell stated “I
don’t need the money, I just want it.” The court is mindful of the conduct of Mr.
Campbell and readily sees where it would deeply hurt and embitter Mrs. Campbell.
Legally, that is not a justification under the laws of the state of Tennessee for
awarding alimony. Taken as a whole the court views Mrs. Campbell’s statement as
an intemperate remark. . . . Mrs. Campbell testified that she was extremely satisfied
with her current income and unlikely to seek further education or other opportunities
as long as her business continued to prosper. From all of which the court finds that
neither transitional alimony or rehabilitative alimony is appropriate in this case. Out
of an abundance of caution and to insure Mrs. Campbell’s immediate economic
future the undersigned awards her the sum of five hundred dollars ($500.00) per
month for a period of five (5) years and after the entry of the final decree.

In order to consider the appropriateness of the alimony award, we first must consider the
nature of the alimony awarded. The types of alimony a court with divorce jurisdiction may award
are rehabilitative alimony, alimony in futuro, also known as periodic alimony, transitional alimony,
and alimony in solido. Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 2005). Rehabilitative alimony
provides the economically disadvantaged spouse support for a period of time to enable that spouse
to become and remain self-sufficient. Rehabilitative alimony is appropriate where the trial court
finds that the economically disadvantaged spouse can be rehabilitated from an economic standpoint.
Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). Transitional alimony is awarded when the
court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs
assistance to adjust to the economic consequences of a divorce. Tenn. Code Ann. §36-5-121(d)(4).
Where such rehabilitation is not feasible and transitional alimony is insufficient because long-term
support is necessary, and the court may award alimony in futuro. Id. "Alimony in futuro should be

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awarded only when the trial court finds that 'economic rehabilitation is not feasible and long-term
support is necessary.' " Id. at 359.

In contrast to the other types of alimony, this court has not considered alimony in solido as
support and maintenance for an economically disadvantaged spouse but, rather, a form of division
of marital property. See, Schmidt v. Schmidt, 2005 Tenn App LEXIS 586, No.
M2004-01350-COA-R3-CV, 2005 WL 2240960, at *3 (Tenn. Ct. App. Sept. 15, 2005); Knowles
v. Knowles, 2002 Tenn. App. LEXIS 272, No. M2001-01282-COA-R3-CV, 2002 WL 598551, at
*4, *6 (Tenn. Ct. App. Apr. 19, 2002). Alimony in solido may be awarded in a lump sum at the time
of the final decree, or it may be awarded in the form of periodic payments for a given period of time.
In either form, the award is of a definite amount. Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn.
1999). Since alimony in solido is a form of property division, it is non-modifiable and the trial
court's jurisdiction over the award ends once the award becomes final. Bryan v. Leach, 85 S.W.3d
136, 145-46 (Tenn. Ct. App. 2001).

In the case before us, the trial court specifically found rehabilitative and transitional alimony
to be inappropriate. Whether alimony is in futuro or in solido is determined by either the
definiteness or indefiniteness of the sum of alimony ordered to be paid at the time of the award.
McKee v. McKee, 655 S.W.2d 164, 165 (Tenn. App. 1983). Alimony in solido is an award of a
definite sum of alimony. Spalding v. Spalding, 597 S.W.2d 739, 741 (Tenn. App. 1980). Alimony
in solido may be paid in installments provided the payments are ordered over a definite period of
time and the sum of the alimony to be paid is ascertainable when awarded. Id. Alimony in futuro,
however, lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid.
McKee, 655 S.W.2d at 165-66 (holding alimony was in futuro where husband was ordered to pay
the mortgage note until either the son turned twenty-two or the house was sold). Viewed by these
standards, the alimony awarded by the trial court was clearly alimony in solido, being for an amount
that may be readily ascertained and with no contingencies that would terminate or alter the payments.

Because this court considers alimony in solido in the nature of a property division, in
evaluating the propriety of such an award the amount of such alimony has been added to the property
awarded the recipient and deducted from the property awarded to the payer. Knowles v. Knowles,
2002 Tenn. App. LEXIS 272, No. M2001-01282-COA-R3-CV, 2002 WL 598551, at *6 (Tenn. Ct.
App. Apr. 19, 2002). The amount of alimony in solido awarded in this case is $500.00 per month
for five years (sixty months) or $30,000.00. Adding $30,000.00 to the property awarded Ms.
Campbell would result in her receiving $403,349.72 or approximately 79.5 percent of the marital
estate. Deducting a similar amount from the property awarded Mr. Campbell would result in his
receiving $103, 922.28 or approximately 20.5 percent of the marital estate. Considering the record
as a whole, we find this to be an inequitable division of martial property, and, accordingly, the final
order should be modified by deleting the award of alimony in solido of $500.00 per month for five
years.

The Appellee, Ms. Campbell assigns as error the trial court’s refusal to order Mr. Campbell
to pay her attorneys’ fees incurred in prosecuting her divorce action. The record indicates the

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attorneys’ fees of Ms. Campbell were $20,860.33. In denying her request for attorneys’ fees, the trial
court stated:

Finally, Mrs. Campbell seeks attorneys fees. For the better part of two days of a three
day trial there was testimony from Mrs. Campbell and her witnesses about Mr. Campbell’s
misconduct for which the record reflects he admitted inappropriate marital conduct from the
filing of the complaint. Each party shall be responsible for their own attorney fees.

The award of attorney fees by the trial court is considered an award of alimony. Wallace v.
Wallace, 733 S.W.2d 102, 110 (Tenn. Ct. App. 1987). Decisions involving attorney’s fees are within
the sound discretion of the trial court and, on appeal, this court will not interfere with that decision
except where there is a clear showing that the trial court reached the wrong conclusion such that
manifest injustice would be done if the award or failure to make an award is allowed to stand.
Hanover v. Hanover, 775 S.W.2d 612, 618 (Tenn. Ct. App. 1989). The trial court was apparently
of the opinion that Ms. Campbell had considerably lengthened the trial and attorney’s fees incurred
in order to prove the inappropriate relationship that Mr. Campbell had admitted. We note that after
paying her attorneys’ fees, Ms. Campbell will retain approximately 69.6 percent of the total marital
estate of the parties. Accordingly, we cannot say that the trial court abused its discretion in ordering
the parties to bear their own legal expenses or that denial of an award to Ms. Campbell would result
in a manifest injustice to her. Ms. Campbell's request for her attorneys’ fees incurred in the trial
court is respectfully denied. Accordingly, we affirm the trial court on this issue.

Finally, Ms. Campbell alleges the trial court erred by equally dividing the court costs incurred
in the trial court. The trial court is afforded discretion in taxing and assessing costs. Long v. Long,
957 S.W.2d 825, 833-34 (Tenn. Ct. App. 1997); Ray v. Ray, 2004 Tenn App LEXIS 324, No.
M2003-01158-COA-R3-CV, 2004 WL 1114578, at *17 (Tenn. Ct. App. May 18, 2004). While
court costs are ordinarily allowed to the prevailing party, Rule 54.04, Tenn. R. Civ. P., the Appellee
has failed to cite anything in the record, other than she was awarded the divorce, that would lead us
to the conclusion that the trial court abused its discretion in equally dividing the court costs between
the parties. As a result, we must affirm the trial court on this issue.

IV. CONCLUSION

The ruling of the trial court is affirmed as modified to delete the obligation of Mr. Campbell
to pay alimony in solido. We note that a motion by Mr. Campbell to suspend the alimony payments
pending appeal was denied. This matter is remanded to the trial court for a determination of how
payments of alimony heretofore made by Mr. Campbell shall be recouped and for enforcement of
the judgment of the court. The court costs on this appeal shall be divided equally between the
parties.

___________________________________
DONALD P. HARRIS, SENIOR JUDGE

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