                    IN THE COURT OF APPEALS OF TENNESSEE

                                  EASTERN SECTION                   FILED
                                                                     January 13, 1998

                                                                    Cecil Crowson, Jr.
                                                                    Appellate C ourt Clerk

TERESA ANN HUGHES HAREN,                     ) C/A NO. 03A01-9707-CV-00253
                                             )
          Plaintiff-A ppellant,              ) McM INN CIR CUIT
                                             )
v.                                           ) HON. EARLE G. MURPHY,
                                             ) JUDGE
JAMES SKYLER HAREN,                          )
                                             ) MODIFIED AND
          Defendant-Appellee.                ) REMANDED




ROG ER E. JE NNE , JENN E, SCO TT & BRY ANT , Cleveland , for Plaintiff-A ppellant.

JAMES F. LOGAN, JR., LOGAN, THOMPSON, MILLER, BILBO, THOMPSON &
FISHER, P.C., Cleveland, for Defendant-Appellee.




                                       O P I N IO N




                                                                    Franks, J.




                 In this divorce action the appeals focus on the Trial Judge’s custody

determination, the award of alimony and child support, and the division of marital

assets.

                 Appellant wife and appellee husband were married on December 16,

1981. Both parties were originally from the Athens area. After their marriage, they

move d to Ch arlotte, N orth Ca rolina, w here ap pellee w orked f or an en gineerin g firm.

He was transferred a number of times, and the parties eventually returned to the

Athens area. After working for his father’s construction business for about three
years, appellee started his own firm, the J.S. Haren Company. The Harens have two

sons wh o were 1 0 and 14 at the time of trial.

                The wife filed for divorce on January 16, 1995, and husband filed an

answer a nd coun ter-compla int. Each co mplaint alleg ed inappro priate marital c onduct,

sough t custod y of the ch ildren, an d an eq uitable d ivision o f the pa rties’ asse ts.

                Following trial, the Court granted the wife a divorce on the grounds of

inappropriate marital conduct, and awarded the parties joint custody of the children

with prima ry physical custody of the younger c hild to the w ife, and the o lder child to

the hus band.

                The Court ordered the husband to pay child support of $640.00 a month,

and rehabilitative alimony of $2,00 0.00 a month fo r forty-eight months. The Co urt

did not requ ire the wife to pay any child su pport. The court value d the marital e state

at $1,750,000.00 an d awarded 60 % to the husba nd and 40% to the wife. The w ife’s

40% comprised the house, furniture, her car, a boat and $320,000.00 in cash.

                The wife contends the Trial Court erred in granting the husband custody

of their oldest son. Trial courts have wide discretion in matters of custody, and we

will no t interfer e, absen t an imp roper e xercise of this d iscretion . Grant v. Grant, 286

S.W.2d 3 49 (Tenn . App. 195 4). In this case, th e Trial Co urt properly exe rcised its

discretion.

                The Tria l Court pro perly considere d both par ties’ suitability. Both

parties testified about their interest in the children’s welfare. Additionally, the Trial

Court heard testimony from two psychologists. Also, the Trial Court noted that the

older child wanted to live with his father. Under T.C.A. §36-6-106, the court may

consider the reasonab le preference of a ch ild twelve years of age or older.

                The husband admitted having extramarital affairs. A party’s misconduct

may reflect upon his fitness as a custodian, and may therefore be considered in making


                                                 2
custod y determi nations . Barnhill v. B arnhill, 826 S.W.2d 443, 453 (Tenn. App.

1991). Se xual infide lity or indiscretion, ho wever, “d oes not ipso facto disq ualif y a

parent from receiving custody of children.” Mimms v. Mimms, 780 S.W.2d 739, 745

(Tenn. App. 1989). In this case, the evidence did not preponderate against the Trial

Judge’s determination. T .R.A.P. Rule 13(d).

               The wif e also argue s the Trial Jud ge should have recu sed himse lf

because he previously made a temporary custody determination. The wife moved for

recusal, which the Trial Court denied. “The determination of whether to recuse

onesel f rests w ithin the sound discretio n of the trial judg e. “Ellison v. Alley, 902

S.W.2d 415, 418 (Tenn. App. 1995). The appellant’s Motion for Disqualification

alleged that th e Trial Co urt’s tempo rary custody ruling made it imp roper for h im to

decide the issue at trial. Merely issuing a ruling adverse to a particular party is not, by

itself, ev idence of bias or preju dice. See Herrera v. Herrera, 944 S.W.2d 379, 392

(Tenn. App. 1996). We find no error in the Court’s denial of the motion.

               Both parties contest the award of rehabilitative alimony. The Trial

Court ordered the appellee to pay $2,000.00 a month for forty-eight months. The wife

argues the aw ard wa s insuff icient, w hile the h usban d insists it w as exce ssive.

Gene rally, the am ount of alimon y is a matte r of disc retion f or the C ourt. Houghland

v. Houghland, 844 S.W.2d 619 (Tenn. App. 1992). Appellate courts do not disturb a

trial cou rt’s awa rd of ali mony un less the tr ial court manif estly abus es discre tion.

Ingram v. Ingram, 721 S.W.2d 26 2 (Tenn. App . 1986). We con cur with the Judge’s

award of alim ony in this case. See T.C.A . §36-5 -101(d )(1).

               The wif e is a proper candidate f or rehabilitation . At the time o f trial,

she was 39 years old and in good health. She had completed approximately three

years of college and plans to return to obtain her degree. After graduation, she hopes

to attain a teach ing position . The dura tion of the a ward sho uld be suf ficient for h er to


                                                3
comp lete her tr aining a nd obta in suitab le emp loyment.

               Both parties question the amount of alimony. Generally, a divorce

should not infli ct undu e econ omic h ardship on an in nocen t spous e. Brown v. Brown,

913 S.W.2d 1 63, 169 (Tenn. A pp. 1994). Spousa l support awards are n ot, however,

intende d to be p unitive. Id. The notio n that divorc e should n ot econom ically

prejudice an innocent spouse must also be tempered by the factors listed in T.C.A.

§36-5 -101(d )(1). Id. at 169-170.

               T.C.A. §36-5-101(d)(1) lists factors for the trial court to consider. The

parties were married for fifteen years and both are in good health. The husband has a

degree from Georgia Institute of Technology, and has reported income in excess of

$200,000.00 a year in the past. The wife has never worked outside the home, and has

yet to complete her college education . In this case, the parties enjoyed a relatively

high standard of living d uring the marriage. The husband’s incom e has, however,

decline d recen tly. The pa rties hav e offe red con flicting e xplana tions fo r this dec line.

The husband attributes it to the vicissitudes of the construction business, and changes

in the com pany’s projec ts. The wif e claims that th e husban d presented an improp erly

low picture of his assets to the Court. Additionally, the Trial Court awarded the wife

40% of the marital estate, including cash. Considering these awards in favor of the

wife, th e amo unt of a limony w as not im proper .

               Both parties also contest the amount of the child support. The wife

argues that it is too low, while the h usband contend s it is excessive. The Trial Cou rt

set the wife’s child support obligations at $640.00 a month for the younger child. The

child su pport g uideline s create a rebutta ble pres umptio n of the proper suppo rt amou nt.

T.C.A. §36-5-101(e)(1). If the Trial Court deviates from the guidelines, it must make

a written finding to supp ort its var iance. Id. In this case, $640.00 a month is less than

the amount suggested by the guidelines.


                                                4
               To determ ine the prop er amoun t of suppo rt under the g uidelines, it is

first necessary to determine the husband’s gross income. The husband’s 1995 federal

income tax return lists the following sources of income: $66,741.00 wages, $278.00

taxable interest income, $43.00 dividend income, $61,836 capital gains, ($960.00

other gains, $6,309.00 pensions and annuities, and $3,207.00 farm income. All these

sources count in determining gross income under the guidelines. The sources yield an

initial gross income of $139,374.00. The husband’s farm expenses, not including

depreciation, totaled $54,661. Thus, his gross income is $84,713.00.1

               Child support paymen ts are based on a flat percen tage of the obligor’s

net income. Net income is determined by subtracting from gross income FICA, the

amount of withholding tax deducted for a single wage earner claiming one

withholding allowance, and any other child support obligations. The husband’s tax

return shows federal withholdings of $12,673.00, Social Security withholdings of

$3,794.00 and Medicare withholdings of $1,030.00. These amounts reduce his net

income to $67,21 6.00. Multiplying by 21% to d etermine the proper am ount of support

for one ch ild, the total yearly obliga tion is $14,11 5.00 or $1 ,176.00 a m onth. This is

the pres umptiv ely prope r amou nt unde r the Gu idelines .

               The Trial Judge did not make an express finding of the husband’s net

income, and it is evident from the briefs and argument of the parties’ attorneys, that

the Judge did not take into account all of the husband’s income as required under the

guidelines. Accordingly, we establish the child support at $1,176.00 per month.

               On the issue of the division of marital property, we conclude the Trial

Judge made an equitable distribution between the parties. Tennessee is a dual

proper ty jurisdictio n, Batson v. Batson, 769 S .W.2d 849, 85 6 (Ten n. App . 1988) .



   1
    The husband also apparently drives a company car. While this car counts as a source of income
   under the Guidelines, the record contains no evidence of its value.


                                               5
T.C.A. §36-4-121 provides only for the division of marital property. In this case, the

Trial Court did not make specific findings concerning the marital or separate status of

each p iece of proper ty. Presum ably, he fo und the proper ty at issue to be ma rital. See

Herrera v. Herrera, 944 S.W.2d 3 79, 389 (Tenn. A pp. 1996).

               Because the value of marital property is a question of fact, the Trial

Court’s decision is presumed to be correct unless the evidence preponderates

otherw ise. See Ha rdin v. Ha rdin, 689 S.W.2d 152, 154 (Tenn. App. 1983). The Trial

Court valued the marital estate at $1,750,000.00. Both parties submitted “estimates”

of values. We conclude that the Trial Court’s evaluation was “within the range of the

eviden ce subm itted” an d shou ld not b e disturb ed on a ppeal. Wallace v. Wallace, 733

S.W.2d 102, 10 7 (Tenn. App . 1987).

               The husband contends the Court did not give him proper credit for

approxim ately $380,00 0.00 in gifts f rom his fa ther. Such g ifts are consid ered separ ate

property under T.C.A. §36-4-121(b)(2)(D). The only evidence of these gifts,

howev er, was a n umber o f checks a nd depo sit slips, only one o f which e xplicitly

stated that it was a gift. Although some of the checks were dated at the same time

every year, a suggestion they may have been regular gifts, there is no clear evidence

about how the funds were disbursed. The Trial Judge did not err on this issue.

               Trial co urts hav e broad discretio n in div iding m arital esta tes. Kincaid v.

Kincaid , 912 S.W.2d 140, 143 (Tenn. App. 1995), and appellate courts generally do

not disturb a trial court’s division unless “the distribution lac ks proper evidentiary

support or r esults from an error of law or a m isrepresenta tion of statuto ry requiremen ts

and pro cedure s”. Thompson v. Thompson, 797 S .W.2d 599, 60 4 (Ten n. App . 1990) .

No such error appears in the record. The evidence does not preponderate against the

Trial Ju dge’s d ivision.

               The Trial court ordered the husband to pay the wife $320,000.00 in cash


                                              6
as part of the equitable d istribution. Th e parties repre sent that the C ourt subseq uently

ordered the husband to pay interest on this award at 6% per annum. We do not find

such orde r in the record and conc lude that intere st should be set in accord ance with

the statutory rate.

               T.C.A. §47-14-121 states: “interest on judgments, including decrees,

shall be computed at the effective rate of 10% per annum, except as may be otherwise

provided or permitted by statute . . . .” This lan guage is m andatory and not subject to

reductio n for eq uitable c onside rations. Bedwe ll v. Bedwe ll, 774 S.W.2d 953 (Tenn.

App. 1989). This Court has held that cash awards in divorce cases are money

judgm ents sub ject to the statutory ra te. Inman v. Inman, 840 S.W.2d 927, 931 (Tenn.

App. 1 992).

               Next, the wife contends the Trial Court erred in not holding the husband

in contempt for his non-compliance with the temporary orders issued by the Trial

Judge. A ppellate cou rts “are loathe to interfere o r modify the p unishme nt imposed in

contempt proceedings because such determinations lie within the sound discretion of

the trial court.” Herrera v. Herrera, 944 S.W.2d 379, 393 (Tenn. App. 1996). The

Trial Court determined that the husband complied with its orders and purged him of

any contempt. Nothing in the record suggests this determination was an abuse of

discretion.

               Finally, both parties contest the award of attorney’s fees. The Trial

Judge ordered the h usband to pay $10,00 0.00 of the wife’s attorne y’s fees. Attorney’s

fee awards are within the sound discretion of the Trial Court and will not be disturbed

on app eal unle ss the ev idence prepon derates agains t the dec ision. Kincaid v . Kincaid,

912 S.W.2d 140, 144 (Tenn. App. 1995). In this case, the evidence does not

prepond erate agains t the Trial Co urt’s finding . We affirm the Trial Jud ge on this

issue.


                                              7
               The judg ment of th e Trial Co urt is affirme d, as mod ified, and the costs

are a ssessed o ne-h alf to each party.




                                            __________________________
                                            Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Hon. William H. Inman, Sr.J.




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