PEGGY NORINE (RANDOLPH) )
FILED
GAVIN, ) March 30, 2000
)
Petitioner/Appellant, ) Cecil Crowson, Jr.
) Appeal No. Appellate Court Clerk
v. ) M1999-02755-COA-R3-CV
)
NEIL FRANCES GAVIN, ) Wilson General Sessions
) No. 5838
Respondent/Appellee. )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE GENERAL SESSIONS COURT FOR WILSON
COUNTY
AT LEBANON, TENNESSEE
THE HONORABLE ROBERT HAMILTON, JUDGE
JOHN R. PHILLIPS, JR.
Phillips & Ingrum
117 East Main Street
Gallatin, Tennessee 37066
ATTORNEY FOR PETITIONER/APPELLANT
JESSICA DAWN DUGGER
GREGORY S. GILL
Rochelle, McCulloch & Aulds
109 Castle Heights Avenue North
Lebanon, Tennessee 37087
ATTORNEYS FOR RESPONDENT/APPELLEE
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This appeal involves the dissolution of a ten-year marriage. The Wife
is the appellant, and on appeal, she challenges the trial court’s asessment of
alimony, the court’s failure to award her attorney fees, and the court’s
distribution of marital property. We affirm the decision of the trial court with
regard to all issues.
Peggy Norine (Randolph) Gavin (“the Wife”) and Neil Frances Gavin
(the “Husband”) were married in Putnam County, Tennessee on June 11, 1988
and were divorced after trial by the General Sessions Court of Wilson County on
July 29, 1998. At the time of the divorce, the Wife was 44 years of age the
Husband 38 years of age. Divorce was granted to the Wife on the ground of the
Husband’s adultery. No issue is raised on appeal concerning the grant of divorce
or the ground upon which it was granted.
By her first issue on appeal, the Wife questions the adequacy of
rehabilitative alimony as ordered by the court. Factors to be considered by the
trial court in an award of alimony are set forth in Tennessee Code Annotated
section 36-5-101(d):
(A) 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;
(B) 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;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to chronic
debilitating disease;
(F) 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;
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(G) The separate assets of each party, both real and
personal, tangible and intangible;
(H) The provisions made with regard to the marital
property as defined in § 36-4-121;
(I) The standard of living of the parties established during
the marriage;
(J) 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;
(K) The relative fault of the parties in cases where the
court, in its discretion, deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to
each party, as are necessary to consider the equities between
the parties.
In setting rehabilitative alimony in the amount of $1,000 per month for
one year, the trial court stated:
So, then that would basically be, again to the husband:
$81,395.00. And to the wife: $133,435. It’s approximately
a 37-63% split on it.
And, I do that basically just on the idea that, I don’t think the
wife really has owed to her the right to be kept up in the life-
style that she has experienced for those 10 years for the rest
of [her] life.
But, I think something is owed there because I think the
husband is going to be able to recover from this a lot more
than the wife will.
...
And, I think as a transition period, I am going to allow an
alimony of $1,000.00 a month for 12 months.
Under Rule 13(d) of the Tennessee Rules of Appellate Procedure, the
findings of fact of the trial court are not to be disturbed on appeal unless the
evidence preponderates against such findings. In this case, the record shows that
the Wife, prior to and during the marriage of the parties, held various positions
of employment as a bookkeeper, office manager and sales person. Her gross
income for 1997 was $19,333, achieved while working a 28 hour work week.
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This court has held:
Trial courts have broad discretion over awards for
alimony. Determinations concerning the amount and
duration of rehabilitative alimony are factually driven and
require balancing the many factors contained in T.C.A. § 36-
5-101(d). Appellate courts are not inclined to alter a trial
court’s alimony determination unless the trial court’s
discretion has been manifestly abused.
Herrera v. Herrera, 944 S.W.2d 379, 387-88 (Tenn. Ct. App. 1996) (citations
omitted). Considering the length of the marriage, the unequal distribution of
marital property favoring the Wife and the earning capacity of the Wife, we
cannot say that the trial court abused its discretion in setting the amount of
rehabilitative alimony at $1,000 per month for a period of twelve months. See
Crain v. Crain, 925 S.W.2d 232, 233-34 (Tenn. Ct. App. 1996).
The Wife next contends that the trial court erred in not requiring the
Husband to pay part or all of her attorney fees. In the division of marital
property, the Wife received net assets of $152,791.52 while the Husband received
marital assets in the amount of $87,900.64. Under these circumstances, we
cannot say that the evidence preponderates against the trial court action in
requiring the Wife to pay her own attorney fees. Duncan v. Duncan, 686 S.W.2d
568 (Tenn. Ct. App. 1984); Ingram v. Ingram, 721 S.W.2d 262 (Tenn. Ct. App.
1986).
The Wife next questions the trial court’s distribution of marital property
and its holding that certain property was the separate property of the Husband.
We hold that the preponderance of the evidence supports the action of the trial
judge in all aspects of his determination of property rights. In so holding, we
note that, contrary to the Wife’s assertion, the trial court did not classify the
Husband’s British Aerospace pension as his separate property. The Wife argues
on appeal that the lower court erred by classifying this pension as separate
property. While we agree that the record contains an ambiguous statement
regarding the classification of this property, we hold that the court made its
determination of the parties’ property rights upon a finding that the pension was
marital property, not separate property.
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The ambiguity arises from the trial court’s language at the close of the
hearing at which time the judge made the following statement: "$27,000.00 to the
husband. Probably, that may be all separate. Well, he worked for British
Airways part of the time." Despite this language, moments later, the court clearly
stated two times its intention to give the Husband "$60,000 as separate property,"
an amount which reflected an entire $50,500.00 separate A.G. Edwards IRA
account plus $9,500.00 of another A.G. Edwards account. Furthermore, the final
divorce decree draws a significant distinction. While the decree awards the
$50,500.00 and the $9,500.00 to the Husband as his pre-marital separate property,
the court awards the $27,000.00 pension account to him to be his separate
property upon the award.
2. THAT Husband shall be awarded the AG Edwards SEP/IRA
account (account #66-245454) in the approximate amount of Fifty
Thousand Five Hundred Dollars ($50,500.00) as his separate
property, free and clear of any and all claims of Wife. This account
represents Husband’s pre-marital credits.
3. THAT Husband shall be awarded his British Aerospace Pension
Account (account #9965-033592) in the approximate amount of
Twenty Seven Thousand Five Hundred Dollars ($27,500.00) as his
sole and separate property, free and clear of any and all claims of
Wife.
...
7. THAT Husband shall be awarded the A.G. Edwards Account
(account #66-245446) in the approximate amount of Thirty Two
Thousand Seven Hundred Forty Seven Dollars and Eight Cents
($32,747.80) as his sole and separate property, free and clear of any
and all claims of Wife. The sum of Nine Thousand Five Hundred
Dollars ($9,500.00) of said account represents Husband’s
pre-marital credit.
(emphasis added). In light of this language in the decree as well as the court’s
statements at the end of the hearing, we find that the trial court’s division of
property was based upon a classification of the Husband’s British Aerospace
pension as marital property.
The judgment of the trial court is in all respects affirmed. Costs of this
appeal are assessed against the parties equally and the case is remanded to the
trial court for such further proceedings as may be necessary.
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______________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
_____________________________________
BEN H. CANTRELL, P.J., M.S.
_____________________________________
PATRICIA J. COTTRELL, JUDGE
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