                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      May 5, 2003 Session

                SALLY ANNE NIGRO v. VINCENT JOHN NIGRO

                     Appeal from the Circuit Court for Williamson County
                          No. II-98294    Donald P. Harris, Judge



                      No. M2002-00134-COA-R3-CV - Filed July 11, 2003


In this divorce case the husband appeals the grant of the divorce to the wife, the division of the
marital property, the award of alimony to the wife, the trial court’s failure to make the wife pay child
support, and its failure to allow the husband to relocate out of the state with the son. For her part,
the wife seeks a larger portion of the husband’s retirement pay and the proceeds of the marital home.
We affirm.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , J.,
joined. PATRICIA J. COTTRELL, J., not participating.

Nicholas D. Hare, Nashville, Tennessee, for the appellant, Vincent John Nigro.

Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Sally Anne Nigro.

                                              OPINION

                                                  I.
                                   MARRIAGE AND SEPARATION

        Vincent and Sally Nigro married in 1981. Mr. Nigro graduated from the Naval Academy in
1973. He retired from the military in 1995. Ms. Nigro is a teacher. The parties moved frequently
during the marriage, but at each station Ms. Nigro managed to find a job and earn an income. They
have two sons. The oldest was eighteen at the time of the trial and in his senior year of high school.
He stayed with his mother after the separation. The youngest son was fifteen and he elected to stay
with his father.
        Both parties had some assets at the time of their marriage, and they accumulated a modest
estate before they separated. They continued to work after the separation, although at the time of the
trial Mr. Nigro had lost his job as a ROTC instructor in the Williamson County School System.

         Ms. Nigro filed for divorce in May of 1998. After that date, the record is a blur of motions,
amended pleadings, orders substituting counsel, and orders dealing with the procedural posture of
the case. Despite all the smoke and noise, the cause finally came on to be heard on January 25, 2000.
At the beginning of the trial, the court granted Ms. Nigro’s motions in limine (1) preventing Mr.
Nigro from testifying about Ms. Nigro’s fault because he had not filed a counter-claim and had not
raised her ill conduct as a defense, and (2) preventing Mr. Nigro from offering any evidence at all
at the trial because he had failed to appear for his discovery deposition. After the hearing the court
granted Ms. Nigro a divorce, awarded custody of the children to her, divided the marital property,
and ordered Mr. Nigro to pay alimony in futuro.

         Mr. Nigro moved for a new trial or in the alternative to alter or amend. On April 24, 2000
the trial judge granted Mr. Nigro a new trial on all issues except for the divorce and the award of
attorney’s fees to Ms. Nigro. After several more rounds of motions, contempt petitions, and
substituted counsel, the remaining issues were tried before a different judge on August 9 and 10,
2001. This hearing resulted in the final decree which is the primary subject of the appeal before us.

                                                 II.
                                            THE DIVORCE

        Mr. Nigro also contests the award of the divorce to Ms. Nigro after the hearing on January
25, 2000 at which he could not testify. His grounds for reversing the award of the divorce are two-
fold: he contends that the sanction disallowing his own testimony was too harsh, and that Ms. Nigro
did not prove grounds that would entitle her to a divorce.

         Mr. Nigro does not cite any authority for his position that the trial judge erred in not allowing
him to testify at the January 2000 hearing. We note that Rule 37.04, Tenn. R. Civ. P., authorizes a
trial judge to “make such orders in regard to the failure as are just” when a party fails to appear for
his deposition. The range of sanctions for failure to cooperate in discovery includes dismissal of the
complaint, Hodges v. Tennessee Attorney General, 43 S.W.2d 918 (Tenn. Ct. App. 2000); Morris
v. State, 21 S.W.3d 196 (Tenn. Ct. App. 1999); granting a default judgment, Yearwood, Johnson,
Stanton & Crabtree, Inc. v. Foxland Dev. Venture, 828 S.W.2d 412 (Tenn. Ct. App. 1991); and
refusing to allow the witness to testify at trial, Strickland v. Strickland, 618 S.W.2d 496 (Tenn. Ct.
App. 1981). The trial judge’s discretion in imposing sanctions for discovery misconduct will not
be disturbed in the absence of an affirmative showing of abuse. Brooks v. United Uniform Co., 682
S.W.2d 913 (Tenn. 1984). Mr. Nigro does not show why it was an abuse of discretion for the trial
judge to disallow his testimony; therefore we affirm the trial judge’s order.

       We also note that Mr. Nigro does not tell us what his testimony would have been or how it
would have changed the result of the first hearing. Tennessee Rules of Evidence 103 provides that


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an order excluding evidence will not be a ground for error unless a substantial right is affected and
the substance of the evidence is made known to the court. Since the court granted a new trial on all
the issues decided after that January 2000 hearing except for the divorce and the wife’s attorney’s
fees, we would need to know what Mr. Nigro would have said at the trial that would have had a
bearing on these issues. Since we do not have the benefit of that evidence, any relief based on its
exclusion is precluded by Rule 103.

        As to the grounds for the divorce, Ms. Nigro proved that Mr. Nigro had a volatile temper and
vented his anger at her in public places and in front of other individuals. He called her vile names
and threatened to use a shotgun or baseball bat on her. On one occasion in January of 1995, Mr.
Nigro threatened to kill Ms. Nigro, and got so violent that the police took him into custody. We
think that testimony supports the trial judge’s finding that Mr. Nigro had been guilty of inappropriate
marital conduct. See Schwalb v. Schwalb, 282 S.W.2d 661 (Tenn. Ct. App. 1955).

                                           III.
                       ALIMONY, ATTORNEY ’S FEES, AND CHILD SUPPORT

        At the end of the first hearing in January of 2000, the court awarded a $13,793.90 judgment
in favor of Ms. Nigro for her attorney’s fees. In the final decree of divorce, the court awarded Ms.
Nigro an additional $17,675.00 as alimony in solido to cover her attorney’s fees from June 2000
through the trial on August 10, 2001. Mr. Nigro asserts that he should not be required to pay these
fees because Ms. Nigro is as capable of paying them as he is. For her part, Ms. Nigro asserts that
Mr. Nigro should also pay the $11,623.60 in fees she incurred between the first trial and June of
2000, and the fees she will have to pay in defending this appeal.

       The applicable standards governing the award of attorney’s fees have been summarized in
Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995):

               Attorney fee awards are treated as alimony. Gilliam v. Gilliam, 776
               S.W.2d 81, 86 (Tenn. App. 1988). In determining whether to award
               attorney’s fees, the trial court should again consider the relevant
               factors in T.C.A. § 36-5-101(d)(1). Houghland v. Houghland, 844
               S.W.2d 619, 623 (Tenn. App. 1992). Where the wife demonstrates
               that she is financially unable to afford counsel, and where the
               husband has the ability to pay, the court may properly order the
               husband to pay the wife’s attorney fees. Id.; Harwell v. Harwell, 612
               S.W.2d 182, 185 (Tenn. App. 1980); Palmer v. Palmer, 562 S.W.2d
               833, 839 (Tenn. App. 1977). These awards are within the sound
               discretion of the trial court, and unless the evidence preponderates
               against the award, it will not be disturbed on appeal. Lyon v. Lyon,
               765 S.W.2d 759, 762-63 (Tenn. App. 1988).




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        Mr. Nigro argues that Ms. Nigro makes more money than he does, therefore her proof fails
to show her need and his ability to pay. But this view of his ability to pay concentrates exclusively
on his current income. At the time of the first award, he had a job, and there is no proof that he is
now unemployable. In addition, he received a substantial amount of property in the final decree, a
factor to be considered in an alimony award. See Tenn. Code Ann. § 36-5-101(d)(H). In view of
the broad discretion given to trial judges in these matters, we are not persuaded to alter the allocation
of attorney’s fees ordered in the trial court.

        The same considerations persuade us to deny any further relief to Ms. Nigro. Considering
the division of marital property and the respective incomes of the parties we believe she should pay
the remaining fees incurred in the trial court and on appeal. See Lindsey v. Lindsey, 976 S.W.2d 175
(Tenn. Ct. App. 1997).

         Mr. Nigro also challenges the court’s order requiring him to pay alimony to Ms. Nigro to
offset the child support she should be required to pay under the Child Support Guidelines. Ms. Nigro
asserts that the court should have ordered Mr. Nigro to pay child support to her. These issues all
address themselves to the discretion of the court and involve some of the considerations we have
already addressed. We do not think the court abused its discretion in these matters.

                                               IV.
                                      THE MARITAL PROPERTY

        The parties raise multiple issues about the division of the marital property. The final decree
makes some specific rulings on the larger items. After ordering the marital home sold, the court
ordered the equity split 75% to Mr. Nigro and 25% to Ms. Nigro. But the court required Mr. Nigro
to pay numerous debts from his share.

         Each of the parties had a retirement account generated from their employment in the public
school system. In addition, Mr. Nigro draws a pension from his Navy service. The court awarded
the retirement accounts to the individuals and awarded Ms. Nigro 31.4% of the Navy pension. Mr.
Nigro asserts that the retirement accounts should have been divided in the same proportion as the
other marital assets, 75% to him and 25% to Ms. Nigro. Alternatively, Mr. Nigro asserts that Ms.
Nigro’s share of his Navy pension should have been 30.7% rather than 31.4%. Ms. Nigro asserts
that the Navy pension should have been divided equally. Without being specific about how the
marital debts should have been divided, Mr. Nigro asserts that the trial court’s allocation of the debts
was inequitable. Ms. Nigro asserts that the court erred in the division of the equity in the marital
home.

         We note that neither party complied with Rule 7 of the Court of Appeals which requires an
orderly tabulation of the value of the marital property and the party to whom the individual items of




                                                  -4-
property were awarded.1 Without this tabulation it is nearly impossible to arrive at what would be
an equitable division of the marital property. The final decree does not put values on the assets
awarded to either party, so we would have to dig those values out of the record and weigh the
parties’ conflicting estimates of value. We are not inclined to do that. With the discretion given to
the trial judges in making a division of the marital estate, see Hanover v. Hanover, 775 S.W.2d 612
(Tenn. Ct. App. 1989), the burden is on the party dissatisfied with the division to show how the trial
judge abused that discretion. We think both parties have failed to do that in this case.

                                                        V.
                                              PERMISSION TO RELOCATE

        Mr. Nigro requested permission to permanently relocate outside the state of Tennessee with
his younger son, Andy. The court denied that request pending further orders of the court, until the
son’s relationship had been established with Ms. Nigro or until a good faith effort had been made
to establish the relationship.

        Parental relocation is governed by statute in Tennessee. See Tenn. Code Ann. § 36-6-108.
The process set out in the statute requires an agreement of the parties or court approval. This case
falls under section (d) which governs the situation where the parents are not spending substantially
equal amounts of time with the child, and the parent spending the greater amount of time with the
child wishes to relocate. The legislature has proclaimed that that parent shall be allowed to relocate
unless the court finds one of a number of facts the legislature cited as sufficient to deny the
relocation. See Tenn. Code Ann. § 36-6-108(d)(1)-(6). One of the reasons to deny relocation is “The
relocation would pose a threat of specific and serious harm to the child which outweighs the threat
of harm to the child of a change of custody.” Tenn. Code Ann. § 36-6-108(d)(2). The statute goes
on to give some examples of “specific and serious harm.”2 None of the examples includes the loss


          1
           Belatedly, the appellant did file a tabulation of sorts showing some of the values and to whom some of the
property was awarded. But the list is so incomplete as to be practically useless in this court. For instance, the list shows
a $78,000 IRA listed as Mr. Nigro’s but no designation as to whom it was awarded. This item is not mentioned in the
final decree. The same is true of an $180,000 item sho wn as P hilip M orris stock. T he co urt may have c onsidered this
as Mr. Nigro’s sep arate p roperty, but even if that is so , a party’s separate property is relevant to the division of the marital
estate. See Tenn. Cod e Ann. § 36-4-121(c)(6).

          2
              Specific and serious harm to the child includes, but is not limited to, the following:

          (1) If a parent wishes to take a child with a serious medical problem to an area where no adequate
          treatment is readily available;
          (2) If a parent wishes to take a child with specific educational requirements to an area with no
          acceptable education facilities;
          (3) If a parent wishe s to relocate and take up residence with a person with a history of child or
          dom estic abuse or who is currently abusing alco hol or other d rugs;
          (4) If the child relies on the parent no t reloca ting who provides emo tional suppo rt, nurturing and
          development such that removal would result in severe emotional detriment to the child;
          (5) If the custo dial parent is emotio nally disturbed or dependent such that the custodial parent is not
                                                                                                              (continued...)

                                                               -5-
of a chance to establish a relationship with a parent. But we note that the examples given in the
statute are non-exclusive; that is, specific and serious harm may include things other than the ones
listed.

       We think that it would amount to specific and serious harm for the child to lose the chance
to become reconciled with his mother. It may be that reconciliation is not possible, but the trial
judge’s order denying the right to relocate is only temporary. After the parties have given
reconciliation a chance, (which, by now, has surely occurred), Mr. Nigro may start the relocation
process over again.

       The judgment of the court below is affirmed. The cause is remanded to the Circuit Court of
Williamson County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Mr. Nigro.




                                                     _________________________________________
                                                     BEN H. CANTRELL, PRESIDING JUDGE, M.S.




       2
        (...continued)
       capable of adequately parenting the child in the absence of support systems currently in place in this
       state, and such support system is not available at the proposed relocation site; or
       (6) If the proposed relocatio n is to a foreign country whose public policy does not normally enforce
       the visitation rights of non-custodial parents, which does not have an adequately functioning legal
       system or which otherwise presents a substantial risk of specific and serious harm to the child.

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