Walker v. Walker

• Decision Date: 04 March 1983
• Citation: Walker v. Walker, 656 S.W.2d 11 (Tenn. App. 1983)
• Parties: Alice Claire Stevenson WALKER, Plaintiff-Appellant-Cross-Appellee, v. Bruce Howlett WALKER, Defendant-Appellee-Cross-Appellant. 656 S.W.2d 11
• Court: Tennessee Court of Appeals

Page 11

656 S.W.2d 11

Alice Claire Stevenson WALKER Plaintiff-Appellant-Cross-Appellee, v. Bruce Howlett WALKER, Defendant-Appellee-Cross-Appellant.

656 S.W.2d 11

Court of Appeals of Tennessee Western Section, at Jackson.

March 4, 1983.

Application for Permission to Appeal Denied by Supreme

Court June 13, 1983.

David E. Caywood, Memphis, for plaintiff-appellant-cross-appellee.

James T. Reed, Memphis, for defendant-appellee-cross-appellant.

CRAWFORD, Judge.

This case involves two appeals. The plaintiff-wife, Alice Claire Stevenson Walker, has appealed from the final decree of divorce granted her as it concerns alimony, attorneys' fees and an evidentiary question. Defendant-husband, Bruce Howlett Walker, has appealed from a subsequent order of the court allowing wife to remove the children to Canada and denying his petition to change custody. Neither party raises any question as to the actual granting of the divorce to the wife on the grounds of cruel and inhuman treatment. We will treat the matters separately in the order of their occurrence.

I. APPEAL OF DIVORCE DECREE

Plaintiff-wife has appealed the final decree of divorce raising the following three issues:

1. Whether the court erred in not allowing into evidence a certain trial exhibit;

2. Whether the court erred in terminating the wife's alimony at the end of a five-year period; and

3. Whether the court erred in not requiring defendant-husband to pay all of the wife's attorneys' fees.

The parties were married in Ontario, Canada on August 14, 1965, and they were divorced by final decree entered March 18, 1982 in Memphis, Tennessee. At the time of the separation of the parties on September 30, 1980, they had been married 15 years and had three sons, ages 13, 12 and 9. The husband was 42 years of age, and the wife was 38 years of age. The wife holds a bachelor's degree from the University of Toronto and in the past has received training in computers. The husband has a bachelor's degree from Amherst College as well as a master's degree in business administration from Harvard University. During the early years of the marriage the wife was employed, but following the birth of the first child, she concentrated on maintaining the home and family and was not employed further outside the home.

The parties owned as tenants by the entirety the home located in Germantown, Tennessee, which was valued at $250,000 but encumbered by indebtedness amounting to $150,000, resulting in an equity of $100,000. The husband owns a 150-acre farm in Vermont with an approximate net value of $150,000, and after the separation of the parties he purchased a condominium that had an approximate net value of $5,000.

Husband is vice-president of a large, well-known corporation, and in 1981 he earned $108,281 from salary and other income. In addition, husband receives certain other benefits from the corporation such as bonuses, an automobile, and a health insurance plan. The total debts of the parties amounted to approximately $201,566 which included the $150,000 home mortgage. There is some indication that during the pendency of the divorce action, husband was offered but turned down a pay increase of over $6,000 per year, with the implication that this was done because of the wife's demand for alimony. Wife's expenses for herself and the children were estimated at $3,783 per month, and husband's expenses, over and above any amounts paid to wife and children, amounted to $2,000 per month.

The parties seem to have had a fairly happy marriage until husband became involved with another woman. It appears that husband wanted to completely change his life-style insofar as his recreational activities were concerned. The husband was not receptive to attempts at reconciliation.

In the final decree granting the wife a divorce on grounds of cruel and inhuman treatment, the court awarded custody of the three minor children to the wife with visitation rights to the husband. The family home was ordered sold with the net equity to be paid to wife. Husband was to receive the farm in Vermont and the condominium in Memphis. The personal property of the parties was to be divided equally. In addition, husband was ordered to pay the house note until the home was sold and to pay alimony of $250 per month during that same period of time. After the home was sold, husband was ordered to pay alimony of $1,400 per month for a period of five years. Husband was also ordered to pay $400 per month in child support for each of the three children. He was ordered to maintain $50,000 of life insurance payable to wife until the alimony obligation was fulfilled. The children were to remain beneficiaries on husband's current insurance policies, and husband was to pay all medical and dental bills for the children. Finally husband was ordered to pay attorneys' fees to wife's attorney in the amount of $4,000 and to purchase wife a new automobile.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

The first argument by wife is that the trial court was in error in not allowing the introduction into evidence of Exhibit 12 on behalf of wife. This exhibit is a letter from husband to wife's father with an attachment in which he lists various and sundry complaints by husband against wife and espouses his supposed philosophy of life. The issue as set out is somewhat misleading, because the record reveals that the exhibit's admissibility was raised when wife's counsel attempted to question husband during cross-examination concerning his "philosophy." Objection was made by husband's counsel that since there was no issue as to grounds for divorce this line of questioning was irrelevant, and the court sustained the objection. Counsel for wife apparently had intended using the letter in cross-examination and thereupon asked that it be admitted for identification, which was done.

We feel that the matters contained in the letter are relevant, or could be relevant, even though the actual grounds for divorce are not contested, since the conduct of the parties can be considered in connection with the alimony and property rights. See Massey v. Massey, 621 S.W.2d 728, 730 (Tenn.1981). Apparently wife does not seriously contend that this affected the judgment of the court, and, in fact, she did not even comment in her brief about this issue other than to set it out as an issue. We cannot see that the exclusion of this evidence more probably than not affected the judgment and, therefore, feel that at most it was harmless error. T.R.A.P. 36(b).

The wife's second argument is that the court was in error in terminating wife's alimony payments at the end of five years.

No hard and fast rule respecting the amount of alimony to be granted can be laid down, and the facts of each particular case must govern. See Stone v. Stone, 56 Tenn.App. 607, 615-616, 409 S.W.2d 388, 392-393 (1966).

In Massey v. Massey, 621 S.W.2d 728 (Tenn.1981), the court listed various factors to be considered in determining the amount of alimony and said, quoting from C.J.S., that some of the factors are:

... the financial circumstances of the parties, with special reference in some instances to their estates, incomes, debts, obligations, or necessities; the source of their property, that is, how and when it was acquired, and whether their property was acquired or accumulated before or after marriage; the estate of each of the parties at the time of the marriage; what the parties surrendered or gave up by marriage; whether the property is the husband's separate property or the joint accumulation of the parties; and the contributions of each to the joint or accumulated property.

Other factors that may be taken into consideration in passing on alimony include the ability of the parties to earn, and their probable future prospects; their sex, age, health, and ability to labor; the respective ages of both of the parties to the divorce proceeding when they married; their station in life or standard or mode of living; their children; if any, and the care and disposition of them; the duration of the marriage and whether it was one of affection or convenience; and the conduct of the parties, with particular reference to the cause of divorce and the relative or comparative responsibility of each therefor.

Id., at 729 (Emphasis omitted).

Husband was the single, precipitating factor in the dissolution of the marriage, and he concedes that wife had been a good wife, housekeeper, and mother, and that she was without fault in this regard. Husband is a high-level executive with a large corporation, and apparently he is performing excellently and has a future that is quite bright. Wife has a college education and some training in computers, although she has had none recently. Some additional training is necessary for wife to be competitive in the computer field. Although wife has some physical ailments, she appears to be in good health. She is 38 years of age and is capable of entering the employment market. She has custody of the children, ages 13, 12 and 9; thus, the youngest child would be approximately 14 years of age when the alimony awarded by the court terminates in five years.

Neither party questioned the court's actions in its awards except as they related to alimony and attorneys' fees. It seems that the court has divided the parties' net worth in approximately equal portions, although it is contended that husband obtained the larger share. We feel that the court was correct in providing for some termination of the alimony, but in view of all of the facts and circumstances, we feel that there should be a somewhat different disposition. We must bear in mind that this wife--apparently at husband's insistence--has devoted her...