Ligon v. Ligon
| Decision Date | 01 April 1977 |
| Citation | 556 S.W.2d 763 |
| Parties | Mary Frances Schmitt LIGON, Plaintiff-Appellee, v. Ronald Sanders LIGON, Defendant-Appellant. 556 S.W.2d 763 |
| Court | Tennessee Court of Appeals |
Maclin P. Davis, Jr., George Wesley Bishop, III, Waller, Lansden, Dortch & Davis, Nashville, Tenn., for plaintiff-appellee.
Charles H. Warfield, Farris, Evans & Warfield, Nashville, Tenn., for defendant-appellant.
In this divorce case, the defendant-husband has appealed from a decree awarding to the plaintiff-wife an absolute divorce, custody of three minor children, household goods and furniture, the right of occupancy of a residence during minority of the youngest child, alimony in solido of $600,000.00 subject to certain limitations, and $60,000.00 attorney fee. Other provisions of the decree will be set in detail as required.
The appellee has moved for dismissal of the appeal on the ground that the $250.00 bond filed by appellant is insufficient. The motion concedes that a broad, general appeal was granted by the Trial Judge; but it is pointed out that the appellant's assignments of error are not directed at the award of divorce, but solely at the award of alimony and attorneys fees, for which reason (it is insisted) the appeal bond should be for.$660,000.00 because of T.C.A. § 27-313 which provides as follows:
This provision has reference to decrees or judgments in the chancery courts. Bilbo v. Allen, 51 Tenn. (4 Heisk.) 31 (1871); Markham v. Haddad,2 Tenn.App. 370 (1926).
This statute is applicable to decrees or judgments for alimony in the Chancery Court. Going v. Going, 144 Tenn. 303, 232 S.W. 443 (1921) (a chancery case).
The present case was not tried in Chancery Court, but before the Circuit Court of Williamson County.
It might be plausibly argued that there is no difference between a divorce decree in circuit and the same decree in chancery. It might be argued with equal force that § 27-313 should apply to all described cases, whether in chancery or circuit; but the appeals statutes must be applied as enacted by the legislature and not as the courts or counsel may conceive they should have been enacted.
In Troutt v. Troutt, 35 Tenn.App. 617, 250 S.W.2d 372 (1952) (a circuit case), this Court held that divorce proceedings, to all intents and purposes, are chancery proceedings, but are sui generis, and differ in many respects from equity cases. In the same case, it was held that a husband who had posted bond for costs was entitled to a review of the entire decree, including alimony and attorneys fees.
Appellee insists that, since appellant assigns error only as to the award of alimony, this is a limited appeal relating to a money judgment and therefore subject to § 27-313. Jurisdiction having been transferred to this Court by general appeal, it is difficult to conceive that the scope of review by this Court would be limited and the amount of appeal bond belatedly increased by the failure of appellant to assign error as to all aspects of the judgment. If this were true, this Court would be limited to assignments of error in its "de novo review" required by statute (§ 27-303, T.C.A.). It is generally conceded that this Court has authority to notice and correct errors whether assigned or not. Rule 13(4) Rules of Court of Appeals.
No authority has been cited or found for the dismissal of the appeal on the ground stated, hence the motion to dismiss is respectfully overruled.
The appellant-husband has filed five assignments of error and the appellee-wife has filed three assignments of error, all of which question the provisions of the decree in regard to alimony and other provisions for the support of the wife and children.
The parties were married in 1958. They have three sons, born in 1962, 1964 and 1967. In June, 1974, defendant removed from the home of the parties and established a separate residence. In August, 1974, defendant sued for divorce, but his suit was dismissed in October, 1974. In the present case, filed by the wife in 1975, the Trial Judge found that defendant has been guilty of cruel and inhuman treatment, as alleged in the original complaint.
During the marriage, the defendant has been successful in business and has accumulated substantial holdings. His income has been and is substantial; and, prior to the inception of marital difficulty, the family lived on a handsome scale. There is evidence that the expense of maintaining such a manner of life was and is $4,876.00 per month.
Defendant's auditor testified that, in 1975, defendant's salaries and other compensation for services amounted to $78,786.00 before taxes. Other items of rent, interest, etc., are shown to have increased his total income for 1975 to about $110,000.00. For the first six months of 1976, defendant's net income is shown to be $40,008.14.
The foregoing is sufficient to establish a factual basis for a liberal allowance to provide for the support of defendant's wife and children in accordance with the standard of living established by him prior to the separation. This conclusion is not seriously disputed on appeal.
The real issue on appeal is the form of provision of support, that is, whether same should be by transfer of assets in solido or by periodic payments. Defendant insists that provision should be made by periodic payments without transfer or encumbrance of assets so that he (defendant) may be permitted to continue to deal freely with all his assets in order to derive a profit therefrom. Plaintiff, on the other hand, prefers the security of a present allocation of property and/or the encumbrance of property to assure periodic payments.
The financial dealings of defendant and his holdings are so intricate, that it is difficult to arrive at an accurate and comprehensive understanding of same. According to his December 31, 1975 balance sheet, defendant's net worth was $973,077.14. However, plaintiff was successful in showing that certain assets were not shown at their true and actual value on the balance sheet.
In sum and substance, it is shown that defendant's net worth on December 31, 1975, was approximately $2,000,000.00 more than the $988,354.85 shown on his balance sheet and that his true worth was approximately $3,000,000.00. The Trial Judge found defendant's actual net worth to be approximately $2,400,000.00.
The facts being as stated, the question remains what financial provision should be made for the plaintiff-wife and her children.
The Trial Judge disposed of this issue as follows:
1. Plaintiff-wife was awarded all of the furnishings and personal effects in the home, with certain exceptions. On appeal, no question is made of this award.
2. Plaintiff was granted the right to occupy the residence situated on the farm belonging to defendant until the 18th birthday of the youngest child (1985). Defendant was required to pay taxes and insurance on said residence but was permitted to mortgage the farm including the possessory interest granted to plaintiff.
3. Defendant was required to hold plaintiff harmless from any liability on various debts of defendant on which she was liable. This provision is not questioned on appeal.
4. Plaintiff was awarded judgment in the amount of $600,000.00 for alimony in solido, provided no execution should issue thereon so long as defendant should pay interest at eight per cent in monthly installments.
5. Plaintiff was awarded judgment for $60,000.00 attorneys fees payable with eight per cent interest in three annual installments.
6. A lien was declared upon all property of Christus Biblical Gardens, Inc., to secure the two aforesaid judgments.
7. Defendant was required to pay directly all of the medical, dental and educational expenses of the children. This provision is not questioned on appeal.
This Court concurs generally with the conclusions of the Trial Judge as to the amount of periodic payments which should be made and the provision of alimony in solido. Specifically, this Court agrees that the eight per cent interest upon the $600,000.00 judgment ($4,000.00 per month) is a reasonable periodic payment to be required of defen...
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