Summary
noting that, normally, "losing party" in case pays costs
Summary of this case from Sanders v. GrayOpinion
App. No. 01-A-01-9004-CV-00133 Davidson Law.
October 24, 1990.
APPEALED FROM THE FOURTH CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE, MURIEL ROBINSON, JUDGE.
SANDRA JONES, Nashville, Tennessee, ATTORNEY FOR PLAINTIFF-APPELLEE.
PEGGY D. MATHES, Nashville, Tennessee, ATTORNEY FOR DEFENDANT-APPELLANT.
AFFIRMED AND REMANDED OPINION
In this divorce case, defendant Lee Ann Bulla has appealed and presented several issues: (1) whether the trial court erred in failing to award her an equitable interest in the parties' marital property; (2) whether the trial court erred in failing to award her rehabilitative alimony; (3) whether the trial court erred in failing to award her all of the attorney's fees incurred by her in this case; (4) whether the trial court erred in ordering her to pay the costs; and (5) whether the trial court erred in "putting her to trial without sufficient opportunity to prepare."
The pertinent facts are as follows:
The parties were married in 1976. Two children were born to the marriage.
The parties were divorced for the first time on 3 May 1984 on the ground of irreconcilable differences. The property settlement and custody agreement, which was approved by the court, provided for joint custody of the minor children with the children residing with the defendant. The agreement also provided that plaintiff would pay to the defendant child support of $750 per month and that the plaintiff would have liberal visitation.
In late May 1984, following the divorce, the plaintiff purchased Lot No. 72, Harpeth Trace Subdivision.
In December 1984, the parties renewed their relationship. The defendant was living in a condominium on Clifton Avenue in Nashville which was owned by her parents. In December 1984, plaintiff moved into the condominium with defendant and the children, and the parties began cohabitating.
On 9 December 1984, the plaintiff entered into a contract to buy a condominium at 704 Harpeth Trace Drive. In January 1985, after closing, the parties and their children moved into the condominium at 704 Harpeth Trace Drive. The plaintiff continued to pay defendant $750 per month child support through April 1985. Plaintiff made the down payment and paid the monthly payments on the 704 Harpeth Trace Drive condominium, the utilities and most of the other family expenses. The evidence is that after the parties resumed cohabitation, the defendant made deposits from her savings account to an account out of which household expenses were paid. From December 1984 through April 1985, she deposited some $8,000 into this household account.
Until the parties remarried in September 1986, the plaintiff continued to deposit money into the defendant's account. He also paid the $333 per month note on her automobile until it was fully paid in September 1985.
The plaintiff deposited some $12,500 into defendant's account from 6 January 1986 through 6 October 1986. Plaintiff paid all the household expenses not paid by defendant from her account.
Plaintiff is an architect by profession. In July 1985, he began construction of a home on Lot 72 in Harpeth Trace Estates. He drew the plans and also served as the general contractor. It was his testimony that the plans would have cost $30,000 to $35,000 and that he saved some $35,000 by acting as general contractor. This property was titled solely in the plaintiff's name. The record shows that the defendant contributed nothing financially to the construction of the home on Lot No. 72.
At the time of the hearing, this home was worth approximately $322,000, had a first mortgage of $216,000 and monthly payments of $2,382.08.
There is evidence that from the time of their marriage in September 1986, the defendant had a problem with alcohol which progressively worsened. She became short tempered, argumentive and violent. Plaintiff's ability to work was affected by the defendant's problem with alcohol, and his business suffered as a result.
The defendant, because of her daily drinking, ceased to function as a wife or mother. She attempted suicide on two occasions. One of the suicide attempts was witnessed by the parties' minor children.
Plaintiff testified that he was distressed by the marks of abuse he found on his children. As a result, he moved his office to the home in order to take care of his children, to keep a closer watch on his wife's activities, and, hopefully, to better concentrate on his work.
In August 1988, the defendant sought treatment at the Cumberland Heights Alcohol and Drug Treatment Center. The defendant was asked to leave Cumberland Heights because of her fraternizing with male patients. However, she was allowed to return, and she finished her initial program in November 1988.
She began drinking again in December 1988 and by January 1989 had totally relapsed. On one occasion she threatened to kill the plaintiff with a shotgun. In early Spring 1989, defendant began staying away from home for long periods of time.
The evidence is that the defendant made insignificant contributions to the plaintiff's business. Even after he moved his office to the home, defendant did not do any work for plaintiff. On one occasion she did attempt to work in the office but was found to be drinking in the office.
The record shows that from 1986 through 1989 defendant made no monetary contributions to her family.
The record is replete with evidence showing that the defendant's problems with alcohol was a hindrance to the plaintiff over the period of the marriage. Further, the record shows she made no contributions to the marriage which could in any way be interpreted as enhancing or causing an increase in the value of the plaintiff's real estate.
When the parties separated in March 1989, the defendant withdrew approximately $19,000 from the Dominion Bank on a home equity line of credit. On 28 April 1989, the trial court enjoined the defendant from spending any more of the $19,000 and ordered her to pay into the registry of the court any remaining funds in her possession from the home equity line. The defendant had spent some $4,000 and did pay some $15,000 into the registry of the court.
As a part of her first issue, defendant simply argues that "this money was a marital asset of the parties which was obtained from a line of credit in both names and, as such marital asset, should have been divided equally between the parties regardless of fault."
We are unable to follow defendant's reasoning. The $19,000 was borrowed from the Dominion Bank. The loan became a liability of the parties, not an asset. However, the trial court did award to defendant the $4,000 she had spent and then ordered the plaintiff to repay the entire $19,000 to the Dominion Bank.
The trial court correctly found that the defendant was not entitled to the $19,000 as her share of marital property.
Defendant further argues in her first issue: "The trial court abused its discretion by not awarding the wife an equitable interest in the real property."
The trial court found that the real property, which was titled in the plaintiff's name, and the debts on that property were the separate property of the husband. The record amply supports that finding. The trial court further found: "The parties have been married for two (2) years and three (3) months. During that interval, wife's contribution to the family as a whole has been zero."
The record shows that there was an increase in the value of the real property during the marriage. "[A]ny increase in value during the marriage, in property determined to be separate property" is marital property. Tenn. Code Ann. § 36-4-121(b)(1). The word "any" is all inclusive and does not allow an exception based on inflation. Ellis v. Ellis, 748 S.W.2d 424, 426 (Tenn. 1988).
The trial court is to make an equitable division of marital property. While equitable does not mean equal, there is a presumption that the ownership of marital property is equal. Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn.App. 1983).
In determining an equitable distribution, there are numerous factors to consider. Tenn. Code Ann. § 36-4-121(c).
The trial court determined that the defendant's contribution to the family as a whole had been zero. The trial court allowed the defendant to retain the $4,000 she had taken from the $19,000 borrowed from the home equity line. We are unable to determine whether this was alimony in solido or distribution of marital property.
In any event, our review of the factors to be taken into consideration in the division of marital property and the record in this cause convinces this Court that the defendant has no equitable interest in the increase in the value of the real property. The defendant has made no contribution and, in fact, was a drain for most, if not all, of the two years and three months the parties were married.
This issue is without merit.
Defendant's second issue is: "The trial court erred in not awarding rehabilitative alimony to Mrs. Bulla."
Defendant first argues that the trial court erred in holding that because there was not a specific prayer for rehabilitative alimony, defendant could not recover alimony.
This Court, in Moore v. Moore, slip op. at 2 (Tenn.App. at Nashville, filed 24 June 1988) stated:
Mrs. Moore's complaint does not contain a specific prayer for rehabilitative maintenance and support even though Tenn. Code Ann. § 36-4-106(a) (supp. 1987) requires divorce complaints to request `such other and further relief as the complainant may think himself or herself entitled to.' While it would have been a better practice to include a specific prayer for rehabilitative maintenance and support in the complaint, Mrs. Moore's failure to do so in this case is not fatal to the trial court's alimony award.
Mrs. Moore had prayed for pendente lite support and for general relief. She also had averred that "the defendant should be and is able to properly support the plaintiff until she is able to get straightened out mentally and secure employment." The trial court directed Mr. Moore to provide Mrs. Moore support prior to the divorce hearing. Thus, unlike the default judgment involved in Qualls v. Qualls, 589 S.W.2d 906, 909 (Tenn. 1979), this Court found that the record supported the conclusion that Mr. Moore had notice that Mrs. Moore was seeking maintenance and support. Slip Op. at 5-6.
In the instant case the counter-complaint does not contain a specific prayer for rehabilitative alimony. The counter-complaint does contain a prayer for general relief. Defendant also sought pendente lite support, which was awarded. We are of the opinion that, as in Moore, the record here supports the conclusion that the plaintiff was on notice that defendant was seeking maintenance and support.
The trial court also found that "the record in this cause is devoid of any evidence of any financial need of wife. Copious notes were taken by the court during the two day trial and there is no testimony in the record of wife's need or request for financial support. The motion to alter or amend the final decree to award alimony should be and is denied."
Defendant in her brief says that "the court found that wife certainly had a need for alimony." The record does not support this. Defendant also in her brief cites pages 249 and 251 of the transcript to show need. The transcript does show that the defendant only has a twelfth grade education, that she has not looked for a job ("only looked in the paper out of curiosity") and that she has had only $200 in income since the separation.
However, we cannot assume from this that she does not have income from other sources or that she has a need for alimony. We agree with the trial court's finding that there is no showing of need.
We review "findings of fact by the trial court . . . de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). The evidence does not preponderate against the trial court's findings in this case.
This issue is without merit.
Defendant's third issue is: "The trial court should have ordered Mr. Bulla to pay the entire amount of Mrs. Bulla's attorney's fees when the court found that Mrs. Bulla had insufficient assets with which to pay."
The trial court is vested with wide discretion in matters of allowance of attorneys' fees, and this Court will not interfere except on a showing of an abuse of the trial court's discretion. Threadgill v. Threadgill, 740 S.W.2d 419, 426 (Tenn.App. 1987). The appellate burden of showing the trial court abused its discretion is on the defendant. Capital City Bank v. Baker, 59 Tenn. App. 477, 442 S.W.2d 259, 266 (1969).
Under the record in this case, we are of the opinion that there was no abuse of the trial court's discretion.
Defendant's fourth issue is: "The trial court should not have ordered Mrs. Bulla to pay the entire costs of this cause."
Defendant argues that she "has been punished enough by losing custody of her children and being awarded no property of value." We find nothing in this record to show that the trial court ordered the defendant to pay the costs as punishment. Normally, the losing party in a case pays the costs. The defendant was the losing party in this case. It is within the discretion of the trial court to order defendant to pay the costs. We find no evidence that the trial court erred in exercising its discretion.
This issue is without merit.
Defendant's last issue is: "Mrs. Bulla was not afforded sufficient opportunity for filing responsive pleadings and discovery prior to the hearing of this trial."
Neither in her brief nor in oral argument does defendant show how she was prejudiced. Rule 6(a) of the Rules of the Court of Appeals provides that the appellant must in his brief file a statement reciting wherein the appellant was prejudiced by the trial court's error and citation to the record showing where the prejudice is recorded. A conclusionary statement that appellant has been prejudiced is not sufficient. This Court neither has the time nor the inclination to search the record for facts to substantiate appellant's conclusions.
This issue is without merit.
The judgment of the trial court is affirmed, and the cause remanded to the trial court for the collection of costs, which are assessed to the defendant, and for any further necessary proceedings.