IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MARY L. ELDRIDGE, )
Plaintiff/Appellee,
)
) Sumner Circuit No. 16910-C
FILED
)
v. ) September 29, 1999
) Appeal No. 01A01-9808-CV-00451
ANTHONY W. ELDRIDGE, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Defendant/Appellant )
APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE THOMAS GOODALL, JUDGE
For the Plaintiff/Appellee: For the Defendant/Appellant:
John Pellegrin Regina L. Farmer
Gallatin, Tennessee White House, Tennessee
AFFIRMED IN PART, REVERSED
IN PART AND REMANDED
HOLLY KIRBY LILLARD, J.
CONCURS:
ALAN E. HIGHERS, J..
SEPARATELY CONCURS AND DISSENTS:
DAVID R. FARMER, J.
OPINION
This is a divorce case. The husband appeals from the final divorce decree, asserting that the
trial court precluded him from presenting evidence at the divorce trial. The husband also appeals
the trial court’s decision regarding alimony and division of marital property. We affirm in part,
reverse in part, and remand.
Defendant/Appellant Anthony Wayne Eldridge (“Husband”) and Plaintiff/Appellee Mary
Lucy Eldridge (“Wife”) were married twelve years. There are no children of the marriage. On May
14, 1997, Plaintiff/Appellee Mary Lucy Eldridge (“Wife”) filed a complaint for divorce alleging
inappropriate marital conduct, or in the alternative, irreconcilable differences. Husband filed an
answer and countercomplaint alleging irreconcilable differences, or in the alternative, inappropriate
marital conduct. Wife also filed a motion for alimony pendente lite, asserting that she is disabled
and has been unable to work for two years.
On June 6, 1997, the trial court conducted a hearing regarding Wife’s motion for temporary
alimony.1 Wife testified that she was unemployed and her monthly expenses were $610. Wife also
stated that her outstanding medical bills totaled $4,000. Husband testified that his annual gross
income was approximately $30,000 to $35,000. The trial court ordered Husband to pay $100 per
week in temporary alimony, “all reasonable and necessary household bills,” certain medical
expenses, and maintain the parties’ health and life insurance.
On January 30, 1998, Wife filed a motion for contempt and for a restraining order, alleging
that Husband had not paid two household bills and that Husband attempted to “break into” the home
and vandalize Wife’s personal property. The trial court dismissed the motion.
The divorce trial began on March 20, 1998. Wife testified regarding her health, past
employment, and the value of the parties’ property. At the conclusion of Wife’s testimony, the trial
court adjourned for the day and scheduled the resumption of the trial for April 9, 1998. This was
subsequently rescheduled to June 5, 1998.
Prior to the resumption of the trial, Husband filed a motion to suspend support payments, and
Wife filed another contempt motion based on Husband’s failure to pay temporary alimony. On May
19, 1998, the trial court conducted a hearing regarding the pending motions. At the conclusion of
the hearing, the trial court ordered both of the parties to submit a proposed final divorce decree. The
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The record of the testimony in this matter consists of a brief statement of the evidence
which summarizes the testimony of the witnesses.
trial court indicated that it intended to sign one of the proposed decrees. Both parties filed a
proposed final decree and a list of marital assets.
The trial court did not adopt either of the proposed decrees. It entered the following final
decree:
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the
parties shall be and are hereby declared divorced per their stipulations, per the June
6, 1997, Order, pursuant to Tennessee Code Annotated § 36-4-129 . . . .
1. That the real property located at 139 Alexander Lane, Bethpage,
Tennessee be vested solely in the Wife, and the Wife shall be responsible for any
indebtedness on such real property. The Husband shall execute a quitclaim deed
transferring all of his interest in such real property to the Wife, and Husband shall be
responsible for the 1997 Sumner County taxes. Wife shall be responsible for all
necessary improvements and repairs.
2. That Husband shall continue to maintain health insurance on the Wife for
twenty-four (24) months.
3. That Husband shall pay to the Wife the sum of ONE HUNDRED (100.00)
DOLLARS per week as rehabilitative alimony for a period of twenty-four (24)
months . . . .
4. That the Wife shall remain in possession of all personal property and
affects of the home, including the parties’ dog, riding lawn mower and air
compressor located at 139 Alexander Lane, Bethpage, Tennessee, except items
located in the 30' X 40' storage building, which Husband shall obtain within fifteen
(15) days of the entry of this Order. Further, that Wife shall remain in possession of
her separate personal property.
5. That Husband shall be awarded the 1980 Chevy Pickup Truck, his
Camaro, the 1984 Tempo, the farm tractor and the dune buggy. Wife shall be
awarded the 1985 Pontiac 6000. Each party shall be responsible for any debt
associated with such vehicle.
6. That the parties shall equally divide Husband’s 401K Alley-Cassetty Coal
Co. in the amount of EIGHT THOUSAND SIX HUNDRED TWENTY-SIX
($8,626.00) DOLLARS. Further, that a Qualified Domestic Relations Order be
submitted to effect this transaction.
7. That the parties shall equally divide the parties’ joint Savings Account in
the amount of SEVEN HUNDRED FIFTY ($750.00) DOLLARS, payable within
ninety (90) days of the entry of this Order.
8. That the Husband shall be responsible for the arrearages on alimony and
the household bills in the amount of ONE THOUSAND FOUR HUNDRED
TWENTY-ONE ($1,421.00) DOLLARS. Such amount shall be payable within
ninety (90) days of the entry of this Order.
9. That each party shall be responsible for their own attorneys’ fees.
10. That the Husband shall be held responsible for the costs of this cause .…
On June 5, 1998, Husband filed a motion to stay the judgment and a motion to reconsider,
asserting that the division of property was inequitable and that there was no showing that Wife was
entitled to rehabilitative alimony. Husband’s motion also stated that “[t]his Court has heard no proof
whatsoever about the proper division of the marital estate in this matter, and the Order should be set
aside[,] and this court should hear proper proof.” On June 18, 1998, the trial court stayed the
implementation of the judgment. On July 17, 1998, the trial court denied Husband’s motion to
reconsider and lifted the stay which was previously granted. On August 28, 1998, Husband filed a
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motion to set aside the judgment, contending that he was “not afforded an opportunity to present
evidence relating to the division of property or the propriety of . . . alimony.” On September 16,
1998, the trial court denied Husband’s motion for a new trial. From this order, Husband now
appeals.
On appeal, Husband argues that the trial court erred in precluding him from the opportunity
to present proof. Husband also contends that the trial court erred in awarding Wife rehabilitative
alimony as well as a judgment for an arrearage in temporary alimony, and in dividing the parties’
property.
Since this case was tried by the trial court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Tenn.
R. App. P. 13(d).
Husband first contends that his right to due process was violated when the trial court, after
hearing Wife’s testimony, asked the parties to submit proposed final decrees and indicated that it
would sign one of the proposed decrees, thus precluding Husband from presenting proof. Wife
argues that Husband made no contemporaneous objection, effectively waiving this issue on appeal.
Husband responds that “such procedural irregularities” constitute plain error which do not warrant
objection.
Tennessee courts have long recognized that, in order to preserve an issue on appeal, an
objection must be made in a timely manner before the trial court. See Glenn v. Webb, 565 S.W.2d
876, 879 (Tenn. App. 1977).
It is a general rule of trial practice that a party is not permitted to withhold
objection to an occurrence during the trial, saving the objection as an "ace in the
hole" to be used in event of an unfavorable outcome. Rather, parties are required to
make timely objection or motion to remedy an error to enable the correction of the
error and the avoidance of the expense of a new trial, and a failure to make such
timely objection or motion is considered a waiver. (citations omitted).
McGrath v. Mitchell, No. 89-10-II, 1989 WL 57732, at *7 (Tenn. App. June 1, 1989); see also
Varley v. Varley, 934 S.W.2d 659, 667 (Tenn. App. 1996).
In this case, the divorce trial began on March 20, 1998. After Wife’s testimony, the trial
court adjourned and scheduled the resumption of the trial for April 9, 1998. This was later
rescheduled to June 5, 1998. On May 19, 1998, the parties again appeared before the trial court to
address motions filed by both parties. At that time, the trial court ordered the parties to submit
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proposed final decrees and indicated that it would sign one of the proposed decrees. Husband did
not object and submitted a proposal for the trial court’s consideration. Subsequently, the trial court
drafted the final decree. The record reflects that the first objection to the trial court’s failure to
permit Husband to submit proof was in Husband’s motion to reconsider. Husband then filed a
motion to set aside the judgment, affirmatively alleging that he was “not afforded the opportunity
to present evidence . . . .” Thus, Husband made no objection until the trial court had ruled on the
substantive issues.
Under these circumstances, we must conclude that Husband failed to timely object. Husband
may not refrain from objecting until he determines whether he will receive a desirable outcome. See
Varley, 934 S.W.2d at 667; McGrath, 1989 WL 57732, at *7. Therefore, this issue is deemed
waived on appeal.
Husband also appeals the trial court’s decision to award Wife rehabilitative alimony. The
trial court awarded Wife $100 per week in rehabilitative alimony, for a period of twenty-four
months. Under Tennessee Code Annotated § 36-5-101 (d), the factors to consider in determining
alimony include:
(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 a 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;
(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.
Tenn. Code Ann. § 36-5-101 (d) (Supp. 1998).
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The determination of the amount of alimony in a given case is in the discretion of the trial
court. Ford v. Ford, 952 S.W.2d 824, 827 (Tenn. App. 1996) (citing Ingram v. Ingram, 721
S.W.2d 262, 264 (Tenn. App. 1986)). On appeal, “wide latitude” is given to the trial court’s
decisions on spousal support. Crain v. Crain, 925 S.W.2d 232, 233 (Tenn. App. 1996).
The statement of the evidence indicates that Wife had various jobs during the course of the
marriage. However, in recent years Wife had several surgeries and has been unable to work on a
full-time basis since 1995. Wife testified that she planned to enroll in college and obtain a degree.
Wife stated that she attempted to obtain health insurance and was denied by three insurance
companies. Based on the record in this cause, we cannot conclude that the trial court’s award of
$100 per week in rehabilitative alimony for a period of twenty-four months was an abuse of
discretion.
Husband also asserts that the trial court committed error in ordering Husband to pay $1,421
in alimony arrearages and household bills, in light of the trial court’s earlier denial of Wife’s
previous motion for arrearages in alimony and payment of household bills. Prior to resumption of
the trial, Wife filed several motions for contempt based on Husband’s failure to pay temporary
alimony. On January 30, 1998, Wife filed a motion for contempt for failure to pay alimony. By
order dated February 25, 1998, the trial court dismissed this contempt petition. On May 12, 1998,
Wife filed another contempt motion alleging that Husband was four alimony payments in arrears and
failed to pay five household bills. Husband filed a motion to suspend pendente lite alimony.
On May 19, 1998, the trial court held a hearing on Husband’s motion to suspend pendente
lite alimony and Wife’s May 12, 1998 motion for contempt. The statement of the evidence
submitted for this appeal mentions the hearing, stating:
Testimony focused on the following issues: whether alimony pendente lite
support should be suspended while the Husband was on leave of absence from his
employer under the Family and Medical Leave Act to care for his father; and whether
Husband was in contempt for failure to pay certain items.
The statement of the evidence says nothing further about the evidence presented at the hearing or
any rulings made by the trial court. Consequently, we must assume that Wife’s motion for contempt
was still pending at the time the trial court entered the final decree.2
2
The trial court entered an order on September 16, 1998 which stated in part that both
parties were found to be in technical contempt of court.
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Although Husband asks this Court on appeal to reverse the trial court’s order that Husband
pay Wife $1,421 in alimony arrearages and household bills, there is no transcript of the hearing on
this issue and the statement of the evidence does not describe the evidence presented on this issue.
“A party raising issues on appeal is responsible for furnishing the appellate court with a record that
will enable that court to reach the issues raised.” Word v. Word, 937 S.W.2d 931, 933 (Tenn. App.
1996). See Rules 24(b) and (c) of the Tenn. Rules of App. Proc. “Without any evidentiary record
there is no way to determine if the evidence preponderates against the [trial court’s] findings of fact.”
Bishop v. Bishop, 939 S.W.2d 109, 110 (Tenn. App. 1996). In the absence of a transcript or a
statement of the evidence that describes the evidence presented on this issue, “we must assume that
‘the record, had it been preserved, would have contained sufficient evidence to support the trial
court’s factual findings.’” Word, 937 S.W.2d at 932 (quoting Sherrod v. Wix, 849 S.W.2d 780, 783
(Tenn. App. 1992). Therefore, we affirm the decision of the trial court on this issue.
Husband also asserts that the trial court inequitably divided the marital property. Tennessee
Code Annotated § 36-4-121(c) directs the trial court to consider 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 each 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 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;
(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; and
(10) Such other factors as are necessary to consider the equities between the
parties.
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Tenn. Code Ann. § 36-4-121(c) (1996). The trial court is accorded wide discretion in adjudicating
the interests of the parties in jointly held property. Ford, 952 S.W.2d at 825. See also Fisher v.
Fisher, 648 S.W.2d 244, 246 (Tenn. 1983).
In this case, the primary marital asset is the marital residence. Wife testified that the value
of the marital home was approximately $28,300 to $30,000 but that the property was in need of
repair. Wife also valued tools, tool boxes, and filing cabinets stored in a building on the property
at $9,000. Based on the statement of evidence and the record in this cause, we find that the evidence
does not preponderate against the trial court’s overall division of marital property.
However, Husband contends that the trial court included in the award to Wife items of
Husband’s separate property. In his brief to this Court, Husband states that “several of the items
which the Defendant alleges are his separate property were awarded to the Plaintiff, including the
Defendant’s personal family photographs and high school memorabilia.” Husband does not itemize
the property he contends is separate property other than family photographs and high school
memorabilia. Wife testified that she would give Husband photographs of his family, and on appeal
stipulated orally that Husband would be given his “personal effects.”
To the extent that the trial court’s award of marital property to Wife included items which
are clearly Husband’s separate property, such as photographs of his family and his school
memorabilia, the trial court’s division of marital property is reversed. The remainder of the trial
court’s division of marital property is affirmed. The cause is remanded to the trial court to determine
if Wife has transferred to Husband these items of separate property, as stipulated on appeal.
Therefore, the decision of the trial court is affirmed, except insofar as the trial court’s award
of marital property to Wife included items which are clearly Husband’s separate property, such as
photographs of Husband’s family or Husband’s school memorabilia. Wife has stipulated that these
items will be transferred to Husband, and the cause is remanded for the trial court to ascertain if this
has been done.
The decision of the trial court is affirmed in part, reversed in part, and remanded as set forth
above. Costs are taxed against Appellant, for which execution may issue if necessary.
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HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.
DAVID R. FARMER, J.
8