Duncan v. Duncan

• Decision Date: 30 October 1984
• Citation: 686 S.W.2d 568
• Parties: Angelia Nicholson DUNCAN, Plaintiff-Appellant, v. Joseph Frank DUNCAN, Defendant-Appellee, and Security Alarms & Services, Inc., Additional Defendant.
• Court: Tennessee Court of Appeals

Page 568

686 S.W.2d 568

Angelia Nicholson DUNCAN, Plaintiff-Appellant, v. Joseph Frank DUNCAN, Defendant-Appellee and Security Alarms & Services, Inc., Additional Defendant.

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 30, 1984.

Application for Permission to Appeal

Denied by Supreme Court

Feb. 25, 1985.

John W. Nolan, III, Philip Duer, William R. Willis, Jr., Nashville, for plaintiff-appellant.

Charles H. Warfield, James G. Martin, III, Farris, Warfield & Kanaday, Nashville, for defendant-appellee.

OPINION

TODD, Presiding Judge, Middle Section.

The plaintiff, Angelia Nicholson Duncan, has appealed from the judgment of the Trial Court which granted her an absolute divorce and alimony in solido, but no periodic alimony or attorneys fees.

As issues, appellant cites seven alleged errors of the Trial Judge as follows:

1. Failing to find defendant guilty of adultery.

2. Failing to properly analyze the assets of the parties....

3. Failing to award punitive alimony.

4. Failing to award alimony in futuro.

5. Failing to award more alimony in solido.

6. Failing to award attorneys fees.

7. Granting to defendant certain personal property.

As to the first alleged error, the judgment of the Trial Court found the defendant guilty of cruel and inhuman treatment, but not of adultery. Appellant insists that she has a right to a judicial determination of defendants adultery because he admitted it and she needs such an adjudication because of her regligious beliefs. No authority is cited to support this insistence and none has been found.

As important as a person's religious beliefs may be, there is no provision in our law or system of justice which entitles a citizen to a judicial declaration of fact to establish a religious right. Such rights are determined by ecclesiastical bodies which must make their own findings of fact for purposes of their decisions.

The primary ultimate issue in this case was whether plaintiff was entitled to an absolute divorce. Two subordinate evidentiary issues were whether defendant was guilty of adultery and/or cruel and inhuman treatment. The Trial Judge decided the second evidentiary issue in favor of plaintiff. He did not decide the first evidentiary issue (adultery). He was not specially requested to make a finding as to adultery; and, if such request had been made, there is no showing of any prejudice from its denial, since the ultimate decision was favorable to plaintiff. TRAP Rule 36(b).

The first alleged error of the Trial Court, if error, does not require reversal.

The second alleged error of the Trial Judge is worded by appellant as follows:

The Trial Court erred in failing to properly analyze the assets of the parties by inflating Mrs. Duncan's assets and substantially devaluing Mr. Duncan's assets in contradiction of the evidence adduced at trial.

Although the foregoing complaint appears in capital letters at the beginning of section II of plaintiff's argument, no reference is found in plaintiffs argument to the valuation of Mrs. Duncan's assets. The argument discusses only the valuation of Mr. Duncan's interest in his business. This opinion will discuss only those matters discussed in the argument.

Mr. Duncan was shown to be the owner of 5,000 shares (47.2%) of the stock of Security Alarms and Services, Inc.

The Trial Judge filed a Memorandum Opinion containing extensive findings of fact, including the following:

The Court finds that with respect to the stock of Security Alarms and Services that it was accumulated through the joint efforts of the parties. The Court further finds that an equitable division of this asset would be 1/4 to Mrs. Duncan and 3/4ths to Mr. Duncan. The total value of the asset is $400,000.00. However, since the stock of Security Alarms is closely held, the value of Mrs. Duncan's interest will be taken from the other jointly owned property.

... [O]ther jointly owned piece of property is the Williamson County farm, having a value of $105,000. Mr. Duncan's interest in the farm should be awarded to Mrs. Duncan as partial compensation for her interest in Security Alarms and Services. In addition, Mr. Duncan should pay to Mrs. Duncan the sum of $47,500.00 in cash to complete the payment for her interest in Security Alarms and Services. Upon the payment of said amount Mrs. Duncan's interest in Security Alarms shall be divested out of her and vested in Mr. Duncan.

It is seen from the above that the Trial Judge awarded to plaintiff a one-half interest in a $105,000 farm which amounted to $52,500, and required payment to plaintiff of $47,500 cash, making a total of $100,000.00 awarded to plaintiff in lieu of 1/4 of defendant's 47.2% interest in the business.

The finding of the Trial Judge, above, that "the total value of this asset is $400,000" is interpreted to mean the total value of defendant's interest in the business, i.e. 47.2%.

Appellant relies upon the testimony of her expert witness, Mr. Garrett, who testified that Mr. Duncan's interest in the corporation was worth $1,250,000.00.

Appellee relies upon the testimony of his two experts, Blankenship and Kraft, that Mr. Duncan's stock was worth "between $300,000 and $400,000" and "$350,000". Thus the Trial Judge rejected the testimony of appellant's witness and adopted the highest estimate of appellee's witnesses.

On appeal, both parties argue at length the qualifications of the experts and the bases of their appraisals. Without detailing the many considerations entering into the valuation of stock of a private closely held corporation, this Court is satisfied that the Trial Judge reached the correct result. The decision of the Trial Judge is to be reviewed by this Court de novo with a presumption of correctness unless the evidence preponderates otherwise. The evidence does not preponderate otherwise.

The findings of the trial judge in a non-jury case are entitled to great weight where the trial judge saw and heard the witnesses and observed their manner and demeanor on the stand and was therefore in much better position than the appellate court to judge the weight and value of their testimony. Smith v. Hooper, 59 Tenn.App. 167, 438 S.W.2d 765 (1968).

This Court has considered the various circumstances urged by counsel as weakening the weight of the experts who testified, but is nevertheless satisfied to affirm the finding of the Trial Judge in respect to the value of defendant's interest in the business.

Sections III, IV and V of appellant's argument are devoted to the following complaints:

The Trial Court erred in finding that this was not a case where the assessment of punitive alimony against Mr. Duncan was proper.

The Trial Court erred by failing to grant Mrs. Duncan alimony in futuro.

(For convenience and continuity, these issues will be discussed together.)

The Trial Court erred in failing to award Mrs. Duncan more alimony in solido.

It is true that some Tennessee authorities mention "relative or comparative responsibility of each spouse" as one of the considerations in allowing alimony or fixing the amount thereof, but no decision cited to or known by this Court has awarded alimony in excess of the needs of the aggrieved spouse solely for the purpose of punishing ill conduct.

Some Tennessee authorities refer to consideration of "fault" or "comparative responsibility", but none suggests that alimony should be fixed in excess of the needs of the wronged spouse for the purpose of punishing the guilty spouse.

For example, in Fisher v. Fisher, Tenn.1983, 648 S.W.2d 244, there was no issue as to amount of alimony; but the Supreme Court, in rejecting fault as a consideration for division of property, simply said:

There is no question that fault and need are to be considered in determining alimony in futuro. T.C.A. § 36-820. (648 S.W.2d at 247).

In Massey v. Massey, Tenn.1981, 621 S.W.2d 728, the Supreme Court considered a contention that the alimony awarded to the wife should be reduced because of her misconduct. The Court cited authority from other jurisdictions for reducing alimony for misconduct of the wronged spouse, declined to reduce alimony in that case, but said:

We conclude that "the nature of the case and the circumstances of the parties" allows the Court, in fixing alimony, "to consider the conduct of the parties with reference to the cause of the divorce and the relative or comparative responsibility of each spouse therefor". (621 S.W.2d at 730)

This Court interprets the above to approve reduction of alimony for misconduct of the wronged spouse, but not the addition of unneeded alimony to punish the guilty spouse.

This Court rejects the proposed allowance of "punitive alimony" as such.

As to periodic alimony (which was not decreed), appellant cites McClung v. McClung, 29 Tenn.App. 580, 198 S.W.2d 820 (1946), in which this Court said:

[3-5] In view of the facts of this case as herein detailed we feel that it is a proper case for alimony. The equity of the husband in the home should be given the wife as alimony in addition to the personal property awarded her. It was the duty of this man to support his wife. Alimony is to be allowed her as a consequence of this duty. In allowing alimony the courts do not do so as a penal measure but out of the common-law duty of the husband to the wife. Toncray v. Toncray, 123 Tenn. 476, 494, 131 S.W. 977, 34 L.R.A., N.S., 1106, Ann.Cas. 1912C, 284. The courts do and should consider the conduct of the husband in fixing alimony-it is his conduct that gives her the right to a divorce.

"The husband owes the duty to his wife of rendering to her suitable support without reference to her financial condition. He ought not to be allowed to escape the performance of that duty by affording his wife cause for separation and placing her in a financial situation worse than it was before his misconduct brought about a legal separation." Williams v. Williams, 146 Tenn. 38, 44, 236 S.W. 938, 940.

The reference in the...