Pertew v. Pertew

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 13, 1999

Cecil Crowson, Jr.
Appellate C ourt
Clerk
AHMED MOAYED PERTEW, ) C/A NO. 03A01-9711-CH-00505
)
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) SULLIVAN COUNTY CHANCERY COURT
)
)
)
)
KATHLEEN RUTH MALONEY PERTEW, )
) HONORABLE JOHN S. McLELLAN, III,
Defendant-Appellant.) JUDGE

For Appellant For Appellee

KATHLEEN RUTH MALONEY PERTEW AHMED MOAYED PERTEW
Pro Se Pro Se
East Norwich, New York Leesburg, Virginia

O P I N IO N

AFFIRMED, AS MODIFIED
REMANDED Susano, J.

1
 These parties were divorced by judgment entered

November 17, 1989. In 1996, they filed competing pleadings

seeking various post-divorce relief. The trial court, following

a hearing on April 15, 1997, granted a portion of the requested

relief in an order entered October 6, 1997. Being dissatisfied

with the trial court’s order, Kathleen Ruth Maloney Pertew

(“Wife”) appeals, raising several issues. In order to reach

these issues, it is necessary to review, in some detail, the

pertinent procedural history of this case.

I. Procedural History

A. The Divorce

The divorce judgment awards Wife custody of the

parties’ minor children, Karim Moayed Pertew (DOB: October 15,

1980) and Tarek Ahmed Pertew (DOB: February 15, 1982). It

directs that the jointly-owned marital residence be sold.1 Wife

and the children were awarded the exclusive use of the subject

property pending the sale.2 Ahmed Moayed Pertew (“Husband”) was

awarded “the three Raytheon accounts known as the Raytheon

Savings and Investment Account, the Raytheon Share account and

the Raytheon Single Life Pension Annuity account.” The trial

court made other decrees pertaining to the parties’ marital

property, none of which are relevant to the issues on this

appeal.

1
The judgment does not dispose of any anticipated net proceeds because
the court found “that there is no equity in [the] residence.” In fact, the
court directed that if the sales proceeds were insufficient to pay in full the
liens against the property, any deficiency would be Husband’s obligation.
2
The trial court directed that if the house was not sold prior to
December 18, 1989, the court would “make a determination of what is
appropriate, i.e., judicial sale and/or a further listing with a realtor.”

2
 The trial court established Husband’s support

obligations pending the sale of the residence. The court further

addressed these obligations as follows:

After the residence is sold beginning the
first of the month next following the sale of
the residence, the husband shall pay to the
wife $500.00 alimony per month for five
years. Thereafter, based upon the guidelines
for Tennessee, finding the net income of the
counter-defendant to be $3,542.00 and
subtracting therefrom the $500.00 alimony and
applying the guidelines to those tables, he
shall pay as child support for two children
$973.40. This shall be paid monthly and
shall be paid at the first of each month
beginning on the first month next following
the closing of the sale of the residence.
After five years, unless a substantial change
of circumstances has caused the same to be
reviewed otherwise, the court shall review
the child support to determine that the same
is in accord with the guidelines for support
and in force and effect after five years.3

Husband was directed to “continue full hospitalization

and medical and dental coverage as [had] been in force and effect

for [Wife] and [the] children [prior to the divorce] for three

years for [Wife] and...for the children throughout his obligation

of support.” Husband was burdened with certain specified debts,

including a $1,200 obligation to American Express and a bill to

Exxon in the amount of $138.40.

The divorce judgment further provides that Husband is

to “pay reasonable moving expenses when the house is sold for the

benefit of [Wife] and children.”

3
Neither party sought court review at or about the time of the
expiration of the five-year period.

3
 The divorce judgment contains a number of other

provisions, the terms of which are not pertinent to the issues

raised on this appeal.

In December, 1989, before the divorce judgment became

final, each of the parties filed a pleading seeking specific

relief with respect to that judgment. In her pleading, Wife also

asked, in the alternative, for a new trial. As pertinent to the

issues now before us, the trial court entered an order providing

for the listing of the marital residence per the parties’

agreement. It also modified the divorce judgment to provide that

the debt to American Express was in the amount of $2,815.85

rather than the amount specified in the divorce judgment. The

court’s order -- which was entered January 30, 1990 -- also

provides that “if [Husband] should advance funds to restore

and/or repair the property pending a sale that the first funds

received from a sale by the parties shall fully reimburse him to

the extent such monies are advanced.” Other relief requested by

the parties was denied.

B. Earlier Post-Divorce Activity

In the fall of 1990, there was a flurry of activity in

this case, some of which was directed at the issue of the sale of

the marital residence. The parties’ competing pleadings resulted

in two orders, the first of which was entered on January 25,

1991. Among other things, that order provides that “any offer

made for the sale of the house should be submitted to the Court,

if reasonable, for the Court’s adjudication as to whether it

should be accepted.” The second order was entered April 16,

4
1991. It approves Husband’s offer to purchase Wife’s interest in

the marital residence. The April 16, 1991, order further

provides that, as consideration for the purchase, Husband would

pay to Wife $5,000 cash plus “the further consideration of

extending the alimony payments of [$500] per month for an

additional three...years after the five...year period of alimony

payments [has] expired.” Husband was to assume the first

mortgage indebtedness of $148,000. Wife was given 30 days from

the entry of the April 16, 1991, order to vacate the premises.

On June 3, 1991, Husband filed a petition in which he

alleged that he had tendered $5,000 to Wife pursuant to the

court’s order of April 16, 1991, but that she had “refuse[d] to

vacate the premises and [had] refuse[d] to deed the property” to

him.

On June 10, 1991, the trial court entered an order, the

validity of which Wife challenges on this appeal. That order

finds Wife in contempt, based on her failure to vacate the

marital residence. It stays the imposition of a ten-day jail

sentence until July 1, 1991, and allows Wife an opportunity to

purge herself of contempt by moving out of the marital residence

by that date. It directs Husband to pay $5,000 into the registry

of the trial court, said sum to be held pending inspection of the

residence “to ensure no damage has been done” to the premises by

Wife. The June 10, 1991, order describes the property by metes

and bounds, divests Wife’s interest in same, and vests that

interest in Husband. As particularly pertinent to this appeal,

the order ends with the signature of the trial judge but does not

5
contain any of the combinations of signatures and certificates

required by Rule 58, Tenn.R.Civ.P.

Except for a petition by Husband that was filed on

January 5, 1993, seeking a change of custody -- a request that

was denied by the trial court on January 26, 1993 -- this case

remained dormant until 1996.

C. Current Controversy

The current round of litigation commenced on June 3,

1996, when Wife filed a pleading styled “Motion” in which she

sought the following: a declaration that the June 10, 1991,

order was “null and void” because of its failure to comply with

Rule 58, Tenn.R.Civ.P.; a judgment for $5,000 “plus interest” for

the payment ordered by the trial court in the challenged June 10,

1991, order; and a judgment for alimony arrearage in the amount

of $48,000.

Wife’s motion was met by Husband’s answer and

counterclaim of June 24, 1996. Among other things, the

counterclaim seeks a credit against Husband’s child support

obligation for payments made by him for the support of his minor

child, Karim, for a three-year period during which the child was

residing with him.

On July 26, 1996, while the pleadings mentioned in the

preceding paragraph were pending, Husband filed a motion alleging

that Wife had agreed to furnish a quit claim deed to facilitate

his sale of the former marital residence, but that she had

6
thereafter refused to do so. He alleged that Wife’s failure had

frustrated his efforts to sell their former residence, which in

turn had prevented him from closing on the purchase of a new

house in Virginia. He sought an order directing Wife to execute

the quit claim deed. He further asked for sanctions and his

attorney’s fees.

Wife responded to Husband’s motion of July 26, 1996, by

filing an answer in which she stated

that there were discussions regarding the
execution of a quit claim deed through her
New York counsel, however, she was not privy
to those discussions and cannot admit or deny
the same.

She concluded her answer by pointing out

that a hearing has been set for...August 16,
1996, and the issues set forth in this Motion
and the issues in the Motion previously filed
by [Wife] should be resolved at that time.

A hearing on August 2, 1996, resulted in an order

entered August 6, 1996, directing Wife to “instanter sign the

Quitclaim Deed faxed to her New York Attorney on June 27, 1996,

at 3:00 p.m. and [to] immediately fax such signed Deed to her

Attorney [in Tennessee] no later than...August 5, 1996.” On

August 7, 1996, Husband filed a Motion for Contempt alleging that

Wife had again refused to sign the deed.

On August 8, 1996, Wife’s Tennessee attorney moved to

withdraw as her counsel. He also sought a continuance “until

7
such time as [Wife] obtains counsel.” An order was signed and

entered on August 8, 1996, permitting Wife’s attorney to withdraw

as her counsel of record and directing that Wife appear in court

on August 16, 1996.

The August 16, 1996, hearing was held as scheduled.

Wife did not attend, nor was she represented by counsel at that

hearing. On August 30, 1996, an order was entered as to that

hearing, finding Wife in contempt because of her failure to sign

the quit claim deed. It directed her to pay $3,162, being the

expenses incurred by Husband in connection with the failure of

the sale of the former marital residence to close. The order

further provided that Wife would not be entitled to any

affirmative relief until the expenses were paid. It scheduled a

hearing on Husband’s counterclaim for October 11, 1996.

On August 30, 1996, Wife, through her new Tennessee

counsel, filed a motion to set aside the order of August 6, 1996,

which order had directed her to sign the quit claim deed, as well

as the order of August 8, 1996, which had permitted her previous

counsel to withdraw. Her motion was based upon an alleged lack

of notice “under Rules 6.01 and 6.05, Tennessee Rules of Civil

Procedure.” On September 3, 1996, Wife filed another motion

seeking

a money judgment against Ahmed Pertew in a
sum to be fixed and determined by the Court
not to exceed $77,315.00 on account of
Husband’s above enumerated obligations to
Wife for accrued alimony now due, child
support arrearage, Wife’s moving expenses,
the children’s medical and dental expenses
Wife has incurred over and above the medical

8
 insurance provided the children, the marital
debts which Husband was ordered to pay, and
for Wife’s interest in the marital property
in the sum of $42,000.00.

She also asked for a modification of Husband’s child support

obligation.

D. Orders Appealed From

The current controversy resulted in two orders, both of

which are before us on this appeal. The first order was entered

January 24, 1997, following a hearing on December 13, 1996. In

that order, the trial court refused to set aside the order of

August 6, 1996,4 which directed Wife to instanter sign a quit

claim deed. The court reserved all other issues, but it did

agree that Wife could seek affirmative relief even though she had

failed to pay Husband’s expenses incurred by him in connection

with the failed closing.

The last hearing in the court below was held on April

15, 1997. The trial court filed its memorandum opinion on

September 4, 1997. That opinion was incorporated by reference

into an order entered October 6, 1997. In its order, the trial

court modified Husband’s child support obligation by increasing

his monthly payment to $1,640 -- a decree not challenged on this

appeal. As pertinent to the issues on this appeal, the trial

court rendered the following decrees:

4
This order is incorrectly referred to in the order of January 24, 1997,
as “the order of this Court filed June 10, 1991.”

9
 1. That Husband is entitled to a credit of
$15,320 against the amount of child support
due under the lower court’s orders and that
when Husband’s payments of $59,484 are added
to the credit, there is no child support
arrearage due.

2. That Wife is not entitled to receive any
further division of the marital assets, other
than the $5,000 payment due from Husband in
connection with the court-approved sale of
Wife’s interest in the former marital
residence to Husband.

3. That Wife is entitled to an alimony
arrearage of $13,612, but that interest on
the arrearage will not commence until October
6, 1997, the date of the order awarding it.

4. That Wife’s motion to set aside certain
orders of the trial court is not well taken
and is denied.

5. That Wife’s claim for moving expenses to
New York is denied.

6. That only future unreimbursed medical
expenses are to be divided on an equal basis.

II. Wife’s Issues

Wife raises issues that present the following questions

for our review:

1. Is Husband entitled to a credit of
$15,320 against his child support obligation
for the expenses incurred by him during the
period August 1993 - August 1996 when his
son, Karim, was living with him?

2. Is Wife entitled to some portion of the
net proceeds from Husband’s sale of the
former marital residence over and above the
amounts awarded to her in the trial court’s
order of April 16, 1991?

3. Is Wife entitled to an equitable share of
Husband’s Raytheon Pension and Savings Plan?

4. Is Wife entitled to a judgment against
Husband for $10,000 representing monies

10
 allegedly expended by her to place the former
marital residence in proper condition for
sale?

5. Should the trial court’s orders of April
16, 1991, June 10, 1991, and August 30, 1996,
be set aside?

6. Is Wife entitled to be reimbursed by
Husband for the minor children’s uninsured
medical expenses?

7. Is Husband obligated to pay for the
moving expenses of Wife and children to New
York?

8. Is Wife entitled to interest on any of
the judgments awarded to her?

III. Standard of Review

In this non-jury case, our review is de novo upon the

record, with a presumption of correctness as to the trial court’s

factual determinations, unless the preponderance of the evidence

is otherwise. Rule 13(d), T.R.A.P.; Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s

conclusions of law, however, are accorded no such presumption.

Campbell v. Florida Steel, 919 S.W.2d 26, 35 (Tenn. 1996);

Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993). We also

note that the trial court is in the best position to assess the

credibility of the witnesses; therefore, such determinations are

entitled to great weight on appeal. Massengale v. Massengale,

915 S.W.2d 818, 819 (Tenn.App. 1995); Bowman v. Bowman, 836

S.W.2d 563, 566 (Tenn.App. 1991). In fact, we have previously

noted that

...on an issue which hinges on witness
credibility, [the trial court] will not be

11
 reversed unless, other than the oral
testimony of the witnesses, there is found in
the record clear, concrete and convincing
evidence to the contrary.

Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490

(Tenn.App. 1974).

IV. Analysis

A. Credits Against Child Support

The trial court found that the parties’ older child,

Karim, had lived with Husband from August, 1993, to August, 1996,

and that Wife “gave permission for [him] to reside with his

father.” The evidence does not preponderate against this

finding. Husband testified that he provided all of Karim’s

support during this three-year period. Wife disagrees, claiming

that monies she expended to travel to see her son while he lived

with his father and other expenditures should count as support

during this period. Our review of the record persuades us that

Husband contributed substantially all of Karim’s support for

three years -- a finding implicitly made by the trial court.

The lower court concluded that Husband was entitled to

a credit of $15,320 against his support obligation, which

obligation, it must be remembered, was for two children. The

evidence does not preponderate against this finding. Under the

circumstances, Husband was entitled to the credit of $15,320, for

expenditures made for Karim’s necessities that were not provided

by the child’s custodian. Duckett v. Duckett, C/A No. 03A01-

9506-CV-00198, 1996 WL 57943 at *3 (Tenn.App., filed February 13,

12
1996); Netherton v. Netherton, C/A No. 01A01-9208-PB-00323, 1993

WL 49556 at *2 (Tenn.App., filed February 26, 1993); Sutton v.

Sutton, C/A No. 180, 1991 WL 16234 at *1 (Tenn.App., filed

February 12, 1991); Oliver v. Oczkowicz, C/A No. 89-396-II, 1990

WL 64534 at *2 (Tenn.App., filed May 18, 1990).

B. Division of Property

Wife contends that she is entitled to additional monies

in exchange for her interest in the former marital residence and

that she should be awarded some part of Husband’s interest in the

Raytheon Pension and Savings Plan. We disagree.

In the divorce judgment of November 17, 1989, the trial

court awarded Husband all of his accounts in the Raytheon Pension

and Savings Plan. Wife’s interest in the marital residence was

fixed by the trial court’s order of April 16, 1991. The latter

order set Wife’s entitlement as regards that property at $5,000

plus $18,000 additional alimony to be paid at the rate of $500

per month over a period of three years. Neither of these orders

was appealed from; each represents a final order as to the

division of the subject assets.

A division of property in a divorce case is not subject

to modification after the judgment or order decreeing the

division becomes final, absent some Rule 60.02, Tenn.R.Civ.P.,

basis for relief. Towner v. Towner, 858 S.W.2d 888, 889-90

(Tenn. 1993); Vanatta v. Vanatta, 701 S.W.2d 824, 827 (Tenn.App.

1985). In this case, the division with respect to the Raytheon

accounts and the former marital residence was final long before

13
Wife sought to modify it. Furthermore, Wife did not timely

assert a Rule 60.02 ground for relief from the trial court’s

division. The trial court was correct in denying her relief with

respect to the division of these assets.

C. Wife’s Alleged Improvements
to Former Marital Residence

Wife contends that she expended $10,000 on the former

marital residence when she was occupying it with the children and

that she is entitled to be reimbursed for these expenditures.

The trial court did not specifically address this claim. Thus,

we examine the record to see if the evidence preponderates

against the trial court’s tacit denial of Wife’s claim. See

Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.App. 1984).

Wife did not present any documentation to substantiate

this claim. Her claim rests solely on her oral testimony that

she expended this sum to improve the property and thereby

increase or maintain its value. Husband counters this claim with

his testimony that Wife left the premises in a less-than-ideal

condition.

Husband correctly points out that the trial court’s

order of January 30, 1990, only addresses expenditures by him and

not those made by Wife. If this were the only impediment to

Wife’s claim, we would be inclined to honor it; but the fact of

the matter is that Wife’s testimony on this subject, when

considered in the light of Husband’s testimony, is less than

persuasive. We cannot say that the evidence preponderates

against the trial court’s tacit denial of this claim.

14
15
 D. Should the Orders of April 16, 1991,
June 10, 1991, and August 30, 1996, be Set Aside?

1. Order of April 16, 1991

Wife seeks to set aside the trial court’s order of

April 16, 1991 -- the order which approved Husband’s offer to

purchase Wife’s interest in the marital residence and which set

the consideration for same at $23,000. She questions the order’s

validity for the following reasons; because Husband failed to

comply with the order by paying $5,000 into court; because,

according to her, the order “has errors in computation”; because

the “order is without a certificate of service or a notice of

entry after it was filed”; because the order “was superseded by

the order of June 10, 1991"; and for another reason, the import

of which is unintelligible to the court.

The order of April 16, 1991, is valid. Husband’s

failure to comply with the order does not vitiate its validity.

Furthermore, contrary to Wife’s assertion, the order does not

reflect on its face any “errors in computation.” Also contrary

to Wife’s claim, the order is signed by counsel for both parties

and even has a certificate in which the clerk of the trial court

certifies service of the order on Wife. Finally, the order of

April 16, 1991, was not superseded by the June 10, 1991, order.

The latter order addressed Husband’s petition seeking enforcement

of the April 16, 1991, order and a finding of contempt against

Wife for her failure to abide by the terms of the earlier order.

Wife’s attempt to set aside the order of April 16,

1991, is without merit.

16
 2. Order of June 10, 1991

Wife also attempts to invalidate the June 10, 1991,

order that found her in contempt, stayed same, and then divested

and vested her interest in the marital residence. Without

reciting in detail Wife’s bases for challenging this order --

none of which appear to be sufficient in this case to set aside

the challenged order -- the court observes that Wife’s counsel

stated to the trial court during the April 15, 1997, hearing,

that “I’m not trying to set it aside, Judge.” It is well-

established that a party will not be permitted to take a position

on appeal that is contrary to a position that he or she took at

trial. Clement v. Nichols, 209 S.W.2d 23, 24 (Tenn. 1948);

Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 40 (Tenn.App.

1982). That is precisely what Wife is attempting to do in this

case. We cannot permit this. This issue is found adverse to

Wife.

3. Order of August 30, 1996

Wife also challenges the trial court’s order of August

30, 1996, which, among other things, directed her to pay

Husband’s expenses of $3,162. These expenses were incurred in

connection with the failed closing of Husband’s sale of the

former marital residence. That sale did not close because Wife

failed to supply a quit claim deed as she had agreed to do

through her New York attorney.

The trial court made specific factual findings with

respect to the evidence presented at the hearing of August 16,

17
1996, which hearing led to the entry of the August 30, 1996,

order:

The Court further finds that as to
defendant’s Motion to Set Aside the Court’s
Order of August 30, 1996, that the
defendant’s attorney of record by fax dated
August 8, 1996..., advised defendant to
appear August 16, 1996, in court.
Defendant’s counsel was on his Motion
relieved of representation of defendant on
August 8, 1996, by the Court, after appearing
on behalf of the defendant pursuant to Notice
to appear on August 2, 1996, at which time
defendant’s attorney obtained a continuance
of the matter to August 8, 1996. The Court
further finds that the testimony of the
defendant is not truthful and that her
veracity has been successfully brought into
issue by reason of inconsistency of
defendant’s testimony with that of her
previous attorney, a member in good standing
with the Kingsport Bar Association, as to the
factual issues of when defendant testified
she learned of her attorney’s withdrawing
from representation. The Court has also
taken into consideration defendant’s
untruthful statement of her income on her
1994-1995 Income Tax Returns; her previous
finding of contempt of the Orders of the
Court in 1991 for her refusal to remove
herself from the parties’ marital property
and, additionally, claiming the children for
deduction purposes on her Income Tax Return
contrary to order of this court; and notably,
that she as an experienced litigator was
present and was available to attend the
scheduled hearing of August 16, 1996, if only
for the purpose of requesting a continuance
in order to be allowed time to obtain
representation which defendant failed or
refused to do which is an indication to this
Court again of the defendant’s combative and
self-serving attitude which the Court
observed during the hearing of this cause on
April 15, 1997. In fact, the defendant met
with her present counsel on August 20, 1996.
Therefore, the Court denies the defendant’s
Motion to Set Aside the Court’s Order of
August 30, 1996, and the Court finds no
justification in truth or in fact to relieve
defendant of the obligation to pay to the
plaintiff the sum of $3,162.00 relative to
which there is no testimony in the record as
to whether this sum of expenses is excessive

18
 or unreasonable; therefore, the Court finds
defendant’s Motion to Set Aside should be
overruled.

The evidence does not preponderate against these

factual findings. This is especially true in view of the trial

court’s credibility finding with respect to Wife -- “that the

testimony of [Wife] is not truthful and that her veracity has

been successfully brought into issue.” The evidence in this case

is clear that Wife knew that a hearing had been scheduled for

August 16, 1996; that she was in the geographic area of the court

at the time of the hearing; and that she made a conscious

decision not to attend the hearing. Wife has only herself to

blame for the adverse consequences visited upon her as a result

of the August 16, 1996, hearing.

The testimony in the record is clear that Wife, through

her New York counsel, agreed, prior to the closing, to execute a

quit claim deed to memorialize the fact that she no longer had a

legal interest in the former marital residence. When, at the

last minute, she refused to do so and thereby caused the

cancellation of the scheduled closing, the trial court acted

appropriately in burdening her with Husband’s expenses occasioned

by the failed closing.5

There is no basis for setting aside the order of August

30, 1996.

E. Children’s Medical Expenses

5
It matters not that Wife’s interest in the property had previously been
divested out of her. Husband apparently wanted a quit claim deed to
facilitate his sale to another. Wife agreed to furnish the deed. When it was
not forthcoming, the closing was canceled.

19
 Wife offered proof of expenses incurred by her for the

children’s medical treatment. The trial court pointed out that

the divorce judgment did not address medical expenses not covered

by insurance. This is a correct interpretation of that document.

Because of this omission, the trial court addressed the

disposition of future uninsured medical expenses for the

children, but refused to address past uninsured expenses, in

effect, leaving them with the parent with whom the child was

residing at the time the expense was incurred. This is a matter

that addressed itself to the trial court’s sound discretion.

T.C.A. § 36-5-101(f)(1). We find no abuse of that discretion in

this case.

F. Moving Expenses

Wife contends that she is entitled to a judgment

against Husband for the expenses incurred by her in moving with

her children to Norwich, New York. We disagree.

The divorce judgment provides that Husband “shall pay

reasonable moving expenses when the house is sold.” The trial

court noted that Wife vacated the former marital residence in

July, 1991, and moved to another location in Bristol. It was not

until March, 1993, that Wife made her second move from her new

residence in Bristol to New York.

The divorce judgment does not require Husband to pay

for multiple moves. We agree with the trial court’s

20
interpretation of the divorce judgment, i.e., that only the first

move is covered by its terms.

Wife’s issue with respect to her moving expenses is

without merit.

G. Interest

Wife seeks statutory, post-judgment interest of 10% on

monetary awards made to her in the divorce judgment and in a 1991

order. The trial court held that interest on these various

awards would not begin to accrue until “the date of entry of the

[October 6, 1997, order].” Wife argues that post-judgment

interest should be computed from the dates of the original awards

rather than from the date of the last order of the trial court.

She contends that the latter order simply restated previous

awards or reduced to one amount a series of alimony payments that

were past due under the terms of an earlier order.

T.C.A. § 47-14-122 provides as follows:

Interest shall be computed on every judgment
from the day on which the jury or the court,
sitting without a jury, returned the verdict
without regard to a motion for new trial.

(Emphasis added). Such interest “shall be computed at the

effective rate of ten percent (10%) per annum, except as may be

otherwise provided or permitted by statute.” T.C.A. § 47-14-121.

“The allowance of interest depends entirely upon statute.”

21
Bedwell v. Bedwell, 774 S.W.2d 953, 956 (Tenn.App. 1989) (citing

Owens v. State, 710 S.W.2d 518 (Tenn. 1986)).

In Bedwell, the trial court awarded post-judgment

interest of 7%, citing, as a reason for the lower rate, “the

circumstances” which led to the monetary award in that case. Id.

at 956. On appeal, this court modified the lower court’s

judgment so as to provide for 10% post-judgment interest, noting

that “[t]he language [of T.C.A. § 47-14-121] is mandatory and it

is generally held [that] the rate of interest prescribed by

statute is deemed controlling and not subject to reduction by

reason of equitable considerations.” Id.

Post-judgment interest accrues “from the date of the

decree until paid.” Inman v. Inman, 840 S.W.2d 927, 931

(Tenn.App. 1992). “[T]he right to interest on a judgment is

statutory and the failure of any court to expressly provide such

interest in its judgment does not abrogate the statute.” Id. at

932.

In the case of Price v. Price, 472 S.W.2d 732 (Tenn.

1971), the Supreme Court quoted, with apparent approval, from 33

ALR 2d 1455 -- an article entitled “Right to Interest on Unpaid

Alimony”:

In the greater number of cases dealing with
the question, interest has been allowed on
unpaid alimony. Thus, where the problem
arose in respect of judgments for alimony in
gross, interest has been allowed from the
date payment was due under the judgment until
payment was made, and, as to unpaid

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 instalments, interest has been allowed from
the date the particular instalment matured.
Likewise, interest has been allowed on unpaid
instalments of alimony against the estate of
a deceased divorced spouse. The theory upon
which interest is allowed in these cases is
that a judgment awarding alimony is in the
nature of a money judgment. The same result
has been reached even where the judgment or
instalment became due and payable pending an
appeal of the judgment awarding the alimony,
on the theory that the party awarded alimony
should not be deprived of it by the
prosecution of an appeal.

Id. at 734.

Based on the foregoing authorities, we believe the

trial court in the instant case erred in decreeing that interest

on Wife’s $5,000 judgment and alimony arrearage would not begin

to accrue until October 6, 1997. We find and hold that these

awards were made in an order that became final in 1991. It is to

that earlier order that we must look to determine the interest

accrual date of the $5,000 award and the alimony award.

Wife is entitled, as a matter of law, to interest at

the rate of 10% per annum, without compounding, on the judgment

that first awarded her $5,000. That judgment was entered June

10, 1991. Since that order had the effect of divesting Wife of

her interest in the former marital residence, Husband should have

paid $5,000 into the registry of the court as of that date. This

is what he was directed to do in the June 10, 1991, order. Had

he done so, he would have prevented any interest from accruing on

the $5,000 award. He cannot rely on his partial tender6 to

6
Husband sent Wife’s attorney a check for $3,000.

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Wife’s attorney. He should have made his payment -- in the full

amount -- directly to the registry of the court as he was

directed to do. Furthermore, his partial tender was conditional.

The condition -- a claimed credit of $2,000 for some tools that

he was awarded in the divorce judgment but allegedly did not

receive -- was later rejected by the trial court. Wife cannot be

faulted for refusing to accept Husband’s conditional partial

tender. That tender did not have the effect of stopping the

accrual of interest.

Wife’s alimony award was a judgment; but since it was

payable in installments, interest does not accrue on any given

installment until the due date of the payment. See West American

Insurance Co. v. Montgomery, 861 S.W.2d 230, 232 (Tenn. 1993).

Hence each installment accrues interest at the rate of 10% from

the due date of the payment, again as a matter of law. This is

simple interest without compounding. The trial court determined

that there was an arrearage of $13,612 through April 1, 1997.

This represents 27 payments at $500 each and one payment of $112.

Logically, the payment of $112 is the oldest one due. Going

backwards, it was due January 1, 1995, and accrues simple

interest at the rate of 10% per annum from that date until paid.

Each award of alimony of $500 accrues interest at the rate of 10%

per annum from its due date, again until paid. For example, $500

was due February 1, 1995, $500 was due March 1, 1995; and, going

forward, each additional $500 payment was due on the first day of

the next succeeding 25 months.

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 There is no credible evidence that any of the alimony

due prior to January 1, 1995, was not timely paid. Therefore,

Wife is not entitled to any interest on payments due prior to

that date.

The trial court determined that Husband had effectively

paid all of the child support due under prior orders of that

court. The evidence does not preponderate against this finding.

There is no credible evidence that Husband failed to make these

payments in other than a timely fashion. Therefore, Wife’s claim

that she is entitled to post-judgment interest on child support

payments is without merit.

The trial court did award Wife child support at a new

rate, i.e., $1,640 per month, retroactive to October, 1996; but

this award was first reduced to judgment in the order of October

6, 1997. Therefore, interest on this award for any period of

time prior to October 6, 1997, would be in the nature of pre-

judgment interest. An award of such interest is discretionary

with the trial court. See T.C.A. § 47-14-123. See also Kirksey

v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn.App. 1990). We

find no abuse of discretion in the trial court’s tacit refusal to

award pre-judgment interest in this case.

In its order of October 6, 1997, the trial court

awarded Wife a judgment for $2,954.25, being the total of the

obligations to Exxon and American Express, which obligations,

Husband was ordered to pay in the divorce judgment. The trial

court decreed that this award would bear interest from and after

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the October 6, 1997, order. We believe this was appropriate.

The divorce judgment did not order Husband to pay Wife the

amounts of these bills; that judgment simply ordered him to pay

the creditors. The first judgment awarding Wife monies with

respect to these bills was the trial court’s order of October 6,

1997. Any interest on this award prior to that date would be in

the nature of pre-judgment interest. The trial court did not

abuse its discretion in failing to award such interest with

respect to these bills. This is especially true in view of the

fact that Wife’s testimony was somewhat contradictory as to if

and when she paid these bills, and, if so, whether she paid all

or only part of them. Despite the less-than-definite nature of

this testimony, the trial court apparently found that Wife did

pay these two bills, and this finding is not challenged on this

appeal; but the ambiguous nature of Wife’s testimony is

justification enough for the trial court’s decision not to award

pre-judgment interest.

In fairness to Husband -- even though he has not raised

the matter on appeal -- we would point out that he is entitled to

post-judgment interest on the judgment of $3,162 awarded to him

in the trial court’s order of August 30, 1996; to quote a well-

known saying, “what’s good for the goose, is good for the

gander.”

If the parties cannot agree on the interest due

pursuant to this opinion, the trial court will make this

determination.

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 V. Conclusion

The judgment of the trial court, as modified, is

affirmed. Exercising our discretion, we tax the costs on appeal

75% to the appellant and 25% to the appellee. This case is

remanded for such further proceedings, if any, as may be

required, consistent with this opinion, and for the collection of

costs assessed below, all pursuant to applicable law.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

________________________
Houston M. Goddard, P.J.

________________________
Herschel P. Franks, J.

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