Luna v. Luna, 85-275-II
| Decision Date | 13 August 1986 |
| Docket Number | No. 85-275-II,85-275-II |
| Citation | 718 S.W.2d 673 |
| Parties | Arlene Hazel LUNA, Plaintiff/Appellee, v. Charles Bill LUNA, Defendant/Appellant. 718 S.W.2d 673 |
| Court | Tennessee Court of Appeals |
W. Charles Doerflinger, Hairrell & Doerflinger, Lawrenceburg, for plaintiff/appellee.
Charles W. Holt, Jr., Boston, Bates & Holt, Lawrenceburg, for defendant/appellant.
This appeal arises out of a divorce action filed by a wife in the Chancery Court for Lawrence County against her husband of eighteen years. The trial court, having heard the evidence without a jury, granted the wife a divorce on the grounds of cruel and inhuman treatment. The husband has appealed and challenges the trial court's decision awarding his wife periodic alimony and requiring him to pay one half of his wife's attorneys fees. We find that this appeal lacks substantial merit and, therefore, affirm the judgment of the trial court.
Arlene Hazel Luna, now fifty-three years of age, married Charles Bill Luna, now forty-seven, in Monroe, Michigan in June, 1966. This was Mrs. Luna's fourth marriage and Mr. Luna's second. The parties had no children, although Mrs. Luna had a daughter by a previous marriage.
The early years of their marriage were marred by numerous instances of infidelity on the part of both parties. Both parties were aware of their spouse's misconduct but always reconciled. Mrs. Luna testified without contradiction that she had learned the error of her ways and had become active in her church.
The parties moved to Lawrenceburg in 1974. Mr. Luna started a successful aluminum siding business. Mr. Luna generated $497,000 in business in 1983, and his gross receipts in 1984 were projected to be in excess of $650,000. Mrs. Luna, having an eighth grade education and few skills, remained at home as a housewife.
The success of Mr. Luna's business enabled him to purchase several pieces of real property. While he placed some of the property in his own name, he customarily put this property in the names of relatives and friends. Mr. and Mrs. Luna were able to live comfortably. They were able to dress well, buy luxury items, and eat out frequently. Mr. Luna filed a sworn financial statement with a local bank stating that his net worth on October 27, 1984 was $143,768.70.
Mrs. Luna testified that she thought that all was not well with her marriage in early 1984. Mr. Luna finally admitted that he was having an extramarital affair. The parties tried to reconcile but were unsuccessful. Mr. Luna moved out of their apartment in April, 1984 and continued his relationship with his paramour. Mrs. Luna filed this divorce action in September, 1984.
Mrs. Luna had returned to work at a minimum wage job. At the time of trial, she was working as a cashier at a local store. Her employment prospects are limited by her lack of experience and formal skills. She also has a number of physical limitations caused by surgery she has had since 1981. She cannot meet her financial obligations and is unable to obtain credit.
Mr. Luna claimed that he had not been "too ambitious" since Mrs. Luna filed for a divorce. While he claimed to have only limited resources, Mr. Luna was able to spend $4,000 for furniture since the parties separated. He was also able to remodel his home and lease a car for his girl friend.
Mr. Luna also stated that he had attempted to resolve his marital differences with Mrs. Luna in early 1985. He offered to liquidate all the couple's holdings and divide the proceeds equally. When Mrs. Luna refused this offer, Mr. Luna stopped working and turned all his business over to his brother. He testified:
As of the first of this year, through my attorney, I've had my wife's attorney contacted, I was tired of this, it's been going on for several months, with no satisfaction, as far as I was concerned. I had them contacted, I offered to sell everything, right down to the family car and split the money. The offer was refused. When I did that, that made me completely in a don't care mood, and I said, "I'll just set down and quit, and I'll start selling my assets," and me and her [his girl friend] have been a living on them.
He also admitted that he was assisting his brother with the business and that he was capable of going back into business at any time.
Mr. Luna takes issue with the trial court's decision to award Mrs. Luna $125 a week in periodic alimony. He rests his position upon the bare assertions that Mrs. Luna was amply provided for in the division of the marital estate and that she is better able to provide for herself than he is. We find these arguments unconvincing.
In accordance with Tenn.R.App.P. 13(d), appellate courts defer to a trial court's discretionary decisions with regard to alimony awards. Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn.App.1984) and Abney v. Abney, 61 Tenn.App. 531, 541, 456 S.W.2d 364, 369 (1970). Thus, we will presume that the trial court's decisions in these matters are correct unless the evidence preponderates against them. Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn.App.1984). The evidence in this case provides ample support for the trial court's decision.
Determinations concerning whether alimony should be awarded and if so, the amount, depend upon the unique facts of each case. Walker v. Walker, 656 S.W.2d 11, 14 (Tenn.App.1983). Among the factors contained in Tenn.Code Ann. Sec. 36-5-101(d) and in the court decisions affecting the amount of an alimony award, the most common factors are the need of the innocent spouse, the fault of obligor spouse, and the obligor spouse's ability to provide support and maintenance. Fisher v. Fisher, 648 S.W.2d 244, 246-47 (Tenn.1983); Lancaster v. Lancaster, 671 S.W.2d 501, 503 (Tenn.App.1984); and Barker v. Barker, 671 S.W.2d 843, 847 (Tenn.App.1984).
Mrs. Luna has amply demonstrated her need. She presently earns approximately $480 each month and has monthly expenses that exceed $1,120. Her prospects of increasing her income are not bright. She is fifty-three years of age and physically infirm. She has little education and few skills. It is evident that she cannot support herself on her own and that the assets received in the distribution of the marital property will soon be exhausted.
Mr. Luna admits that his infidelity has caused the failure of this marriage. At the...
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