                                               I N    T H E         C O U R T O F A P P E A L S                                 FILED
                                                                  A T K N O X V I L L E                                       March 24, 1999

                                                                                                                            Cecil Crowson, Jr.
                                                                                                                            Appellate C ourt
                                                                                                                                Clerk



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            D e f e n d a n t - A p p e l l a n t                           )       A N D R E M A N D E D




D E N I S E       T E R R Y     S T A P L E T O N    O F      M O R R I S T O W N         F O R   A P P E L L A N T

M A R T H A       M E A R E S     a n d   A N N E    T .      M c C O L G A N       O F     M A R Y V I L L E




                                                              O     P   I   N   I     O     N




                                                                                                                Goddard, P.J.



                        Pamela Gay Hill appeals a divorce judgment rendered by

the Hamblin County Circuit Court.                                                   Ms. Hill raises three issues

on appeal:



                                                                    ISSUE ONE

                        The Trial Judge erred in not considering evidence on

the issue of alimony.



                                                                   ISSUE TWO
          The Trial Judge erred in mechanically dividing the

marital property in proportion to debts assumed by the parties.



                            ISSUE THREE

          The Trial Court erred in allowing standard,

unsupervised visitation with the husband.



          The parties married on May 27, 1992, in Myrtle Beach,

South Carolina.   Lizabeth Paige Hill, age four at the time of

trial, is the only child born to this marriage.



          Ms. Hill is a graduate of the University of Tennessee

with a degree in social work.   During the course of the marriage,

Ms. Hill occasionally worked in retail.   In 1997, Ms. Hill earned

$7,700 from various jobs.   At the time of trial, Ms. Hill worked

as a social worker for the State of Tennessee with Douglas-

Cherokee Economic Authority.    Ms. Hill’s position with Douglas-

Cherokee paid an annual salary of $13,000.   Ms. Hill made plans

to attend video reporting school after her divorce and

investigated obtaining a loan to purchase equipment to start such

a business.



          Mr. Hill is currently employed in commercial real

estate management with Melrose Place, Ltd.   Mr. Hill’s annual

base salary is $47,000, but Mr. Hill’s gross income can be

substantially increased by end of the year bonuses.   Mr. Hill

received a bonus in the net amount of $8,100 in 1997.



          Mr. Hill filed a complaint for absolute divorce on

February 6, 1997.   On February 19, 1997, Ms. Hill filed her

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answer and counter-complaint for an absolute divorce.    The cause

of action was heard on February 2, 1998, in the Circuit Court for

Hamblen County.    During preliminary matters, Mr. Hill dismissed

his complaint and stipulated the divorce to Ms. Hill based upon

the counter-complaint.



            During the hearing, Ms. Hill sought to try the issue of

alimony.    Mr. Hill objected on the basis that the answer and

counter-claim only contained provisions seeking pendente lite

support.    Referring to the pleadings, the Trial Court ruled that

the issue of alimony should not be tried because it was not

specifically plead.    Ms. Hill reserved her right to make an offer

of proof on the need for alimony.



            Ms. Hill testified at trial that Mr. Hill displayed

aggressive behavior and inappropriate language towards Ms. Hill.

Ms. Hill also alleged that these actions occurred in the presence

of their daughter on several occasions.    For these reasons, Ms.

Hill sought restrictions on Mr. Hill’s visitation with their

daughter.    Mr. Hill testified that this behavior arose out of

difficulty in exercising visitation with his daughter.



            On April 6, 1998, the Trial Court granted the parties

an absolute divorce.    In its Final Judgment of Divorce, the Trial

Court set out a standard, unsupervised visitation schedule for

Mr. Hill.    The Trial Court also established transportation

arrangements, communication specifics, and behavior requirements

for each parent.




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          The Trial Judge also approved a submitted agreement

regarding the responsibility of debts in his Final Judgement.       He

attributed liability of $9,164.00 to Mr. Hill.      He also required

Mr. Hill to pay $597 for the parties’ 1996 property taxes,

$2,807.50 to Ms. Hill for attorney fees, and $2,000 to Ms. Hill

as her portion of a tax refund.       Mr. Hill was awarded all of his

separate property, his retirement 401k account in the amount of

$11,449.01, as well as his $8,100 bonus.



          Ms. Hill was required to assume debts of the parties in

the amount of $3,822.   Ms. Hill was awarded all of her separate

property brought into the marriage, all other marital property,

and a State Farm Life Insurance Policy valued by the Trial Court

at $3,500.   The Trial Court estimated the value of all marital

assets awarded to Ms. Hill at $10,945.      After the Trial Judge

rendered his decision, Ms. Hill made an offer of proof to

establish her need for alimony.



          On April 13, 1998, Ms. Hill filed a Notice of Appeal

requesting review of the issues of rehabilitative alimony,

division of marital assets and debts, and visitation.



          Our review of cases tried without a jury is de novo

upon the record with a presumption of correctness as mandated by

Rule 13(d) of the Tennessee Rules of Appellate Procedure.      This

Rule requires us to uphold the factual findings of the trial

court unless the evidence preponderates against them.       Campanali

v. Campanali, 695 S.W.2d 193 (Tenn.Ct.App. 1985).



                               A.

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          Ms. Hill’s first issue on appeal is that the Trial

Court erred in refusing to consider the issue of alimony or to

permit her to amend her complaint.   She stated in her pleadings

“Husband/Counter-Defendant is able to provide a reasonable amount

of temporary spousal support to Wife. . . .   WHEREFORE,

Wife/Counter-Plaintiff Prays: . . . [t]hat Husband/Counter-

Defendant be required to pay temporary spousal support.”

Furthermore, Tennessee Code Annotated §36-5-101(d)(1) states

“[i]t is the intent of the general assembly that a spouse who is

economically disadvantaged, relative to the other spouse, be

rehabilitated whenever possible by the granting of an order for

payment of rehabilitative, temporary support and maintenance.”

In her appellate brief, Ms. Hill argues that her allegation in

the complaint meets the requirement of the statute.   While we do

believe that Ms. Hill could have been clearer in seeking

rehabilitative alimony, we cannot agree with the Trial Court that

Ms. Hill did not ask for rehabilitative alimony in the pleadings.



          Furthermore, Rule 15 of the Tennessee Rules of Civil

Procedure provides in relevant part:



     A party may amend the party's pleadings once as a
     matter of course at any time before a responsive
     pleading is served . . . . Otherwise a party may amend
     the party's pleadings only by written consent of the
     adverse party or by leave of court; and leave shall be
     freely given when justice so requires.


Tenn. R. Civ. P. 15.01.   After a responsive pleading has been

served, the denial of a motion to amend the pleadings lies within

the sound discretion of the trial court and will not be reversed

absent a showing of an abuse of that discretion.   Hall v. Shelby

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County Retirement Bd., 922 S.W.2d 543, 546

(Tenn.Ct.App.1995)(citing Merriman v. Smith, 599 S.W.2d 548, 559

(Tenn.Ct.App.1979);     Welch v. Thuan, 882 S.W.2d 792, 793

(Tenn.Ct.App.1994)).    There are several considerations a trial

judge should evaluate in determining whether to grant or deny a

motion to amend.    Among these factors are an undue delay in

filing, lack of notice to the opposing party, bad faith by the

moving party, repeated failure to cure deficiencies by previous

amendments, undue prejudice to the opposing party, and futility

of amendment.     Welch, 882 S.W.2d at 793 (citing Merriman, 599

S.W.2d at 559).



            In light of the foregoing factors, even if Ms. Hill’s

pleadings failed to request rehabilitative alimony, there is no

justification for the Trial Court’s denial of Ms. Hill’s motion

to amend.    The pleadings clearly placed Mr. Hill on notice that

Ms. Hill was seeking spousal support; therefore, Mr. Hill would

in no way be prejudiced by allowing amendment to clarify the

pleadings.



            For the foregoing reasons, justice demands that we

remand this issue to the Trial Judge for him to determine whether

rehabilitative alimony is appropriate and if so the amount and

duration thereof.



                                  B.



            Ms. Hill’s second issue on appeal is that the Trial

Court erred in mechanically dividing the marital property in

proportion to debts assumed by the parties.    Furthermore, Ms.

                                   6
Hill alleges that the Trial Court erred in awarding Mr. Hill’s

401k retirement plan and the $8,100 bonus to him.



                       Trial courts have wide discretion concerning the

division of the parties’ marital estate.                                                     Wallace v. Wallace, 733

S.W.2d 102 (Tenn.Ct.App. 1987).                                             Moreover, a division of marital

property by the trial court is entitled to great weight on

appeal,              and is presumed proper unless the evidence preponderates

otherwise.                 Batson v. Batson, 769 S.W.2d 849 (Tenn.Ct.App.1988);

Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn.Ct.App. 1984).                                                                            As

with alimony, such findings by the trial court will not be

disturbed on appeal unless its discretion has been manifestly

abused and its conclusions regarding property division result in

manifest injustice.                             Ingram v. Ingram, 721 S.W.2d 262

(Tenn.Ct.App. 1986); Butler v. Butler, 680 S.W.2d 467

(Tenn.Ct.App. 1984).                              Furthermore, such divisions of property do

not necessarily need to be equal in order to be equitable.

Mondelli v. Howard, 780 S.W.2d 769 (Tenn.Ct.App. 1989).



                           In the case at hand, the Final Judgment of Divorce

awarded all marital property remaining in the marital home to Ms.

Hill.1            The Trial Court valued this property at $7,445.                                                           The

Trial Court also awarded Ms. Hill a life insurance policy valued

at $3,500 which increases the total value of the marital property

awarded her to $10,945.                                  In the parties’ agreement as to the

division of marital debt, Ms. Hill was required to assume debts

in the amount of $3,822.




            1
                        T h e s e i t e m s i n c l u d e d ,   a m o n g o t h e r t h i n g s , t w o l e a t h e r   r e c l i n e r s ,
o n e   e n d   t a b l e , L e n o x c h i n a v a l u e d      a t $ 3 , 0 0 0 a n d c r y s t a l v a l u e d a t     $ 1 , 5 0 0 .

                                                                        7
          Conversely, the Trial Court awarded Mr. Hill his 1998

bonus which netted $8,100 after taxes and all of his 401k

retirement plan valued at $11,449.01.   The total value of the

marital property awarded to Mr. Hill is $19,549.    Mr. Hill was

held liable for marital debts in the amount of $9,164.



          In an effort to establish an equitable division, the

Trial Court ordered Mr. Hill to pay Ms. Hill’s attorney fees

which amounted to $2,807.50 and the property taxes due on the

marital home for 1996 which amounted to $597.50.    Furthermore,

the Trial Court ordered the parties to file a joint tax return.

Ms. Hill testified that she would receive a tax refund of between

$2,000 and $2,500 for filing separately from Mr. Hill.    On the

other hand, Mr. Hill testified that he would liable for another

$2,500 if the parties filed separate tax returns.   Mr. Hill

further testified that he would receive a $200 refund if the

parties filed a joint tax return.   After hearing this testimony,

the Trial Court ordered the parties to file jointly and

furthermore ordered Mr. Hill to pay Ms. Hill $2,000 for the money

she would have received for filing separately.   According to our

calculations, Mr. Hill saved approximately $700 for filing a

joint return, while filing a joint return cost Ms. Hill up to

$500.



          Also, according to our calculations, Mr. Hill received

$7,680 from the division of the marital property while Ms. Hill




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received $6,623.2                                   We conclude under the facts of this case that

the division of marital property was equitable.




          2
                      I n   a r    r i    v i    n g a      t       t   h e s e    t o    t a l s , w e t o o k i n t o a c c o u n t t h e v a l u e o f
m a r i t a l a s s e t s    r e    c e    i v    e d b         y e      a c h p    a r    t y , t h e d e b t e a c h p a r t y w a s r e q u i r e d t o
a s s u m e a n d a n y      o t    h e    r      p a y m       e n t    s o r d    e r    e d b y t h e T r i a l C o u r t i n c l u d i n g t h e a m o u n t s
r e c e i v e d b y f i l    i n    g      a      j o i n       t t      a x r e    t u    r n .

                                                                                                9
                                C.



           Ms. Hill also alleges that the Trial Court erred in

allowing standard, unsupervised visitation with Mr. Hill.    Ms.

Hill argues that the Trial Court failed to give her evidence the

weight it deserved in making its determination about visitation

and erred by making its determination regarding standard

visitation before all of the evidence was presented by the

parties.



           Dealing first with the evidentiary issues, Ms. Hill

alleges that the Trial Court erred in failing to allow into

evidence an audio tape containing several incomplete

conversations spliced onto one audio tape.   The Trial Court did

not exclude the taped conversations between the parties, but did

exclude from admission into evidence the tapes with incomplete

conversations spliced on one tape.    As stated in Rule 106 of the

Tennessee Rules of Evidence, “[w]hen a writing or recorded

statement or part thereof is introduced by a party, an adverse

party may require the introduction at that time of any other part

or any other writing or recorded statement which ought in

fairness to be considered contemporaneously with it.”   As these

were incomplete portions of entire conversations, the Trial Court

properly excluded the spliced audio tape pursuant to Rule 106 of

the Tennessee Rules of Evidence upon Mr. Hill’s objection.



           Ms. Hill further alleges that the Trial Court erred by

excluding entry into of evidence of a journal kept by Ms. Hill

for two years.   Mr. Hill objected to the entry into evidence of

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the journal because he had not been provided an opportunity to

review the document.   The Trial Court did allow Ms. Hill to

refresh her recollection regarding the incidents in question.

After reviewing the journal, Ms. Hill was able to testify fully

and accurately regarding each situation.



          Ms. Hill argues that the Trial Court should have

allowed the journal to be read into evidence according to Rule

803(5) of the Tennessee Rules of Evidence which states:

          (5) Recorded Recollection. A memorandum or record
     concerning a matter about which a witness once had
     knowledge but now has insufficient recollection to
     enable the witness to testify fully and accurately,
     shown to have been made or adopted by the witness when
     the matter was fresh in the witness's memory and to
     reflect that knowledge correctly. If admitted, the
     memorandum or record may be read into evidence but may
     not itself be received as an exhibit unless offered by
     an adverse party.


In the case at hand, Ms. Hill had the ability to testify fully

and accurately after refreshing her recollection.        For this

reason, Ms. Hill’s journal does not fall under the recorded

recollection hearsay exception.         The Trial Court properly allowed

the journal to be used to refresh recollection while refusing to

allow its contents to be read into evidence.



          As with issues of property division, a trial court has

wide discretion in matters of custody and visitation; when a

trial court decides a case without a jury, its findings of fact

on appeal are presumed to be correct unless the evidence in the

record preponderates against them.         Sherrod v. Wix, 849 S.W.2d

780 (Tenn.Ct.App. 1992).   “In reviewing child custody and

visitation cases, we must remember that the welfare of the child

has always been the paramount consideration.”         Luke v. Luke, 651

                                  1 1
S.W.2d 219, 221 (Tenn.1983).       Furthermore, as stated in Guill

v. Carr, an unpublished decision of this court, filed in

Nashville on November 17, 1993:

     the courts customarily grant visitation to the
     noncustodial parent as long as the advantages to the
     noncustodial parent and to the child can be found to
     outweigh the disadvantages to the child. . . . Thus the
     primary consideration in a visitation dispute is the
     child’s best interest. . . . The best interest analysis
     used in visitation cases, like its counterpart in
     custody cases, is inherently subjective. It requires
     the consideration of numerous facts unique to each case
     and the weighing of many of the same factors used to
     make custody decisions. Since the outcome often hinges
     on subtle factual nuances and the demeanor of the
     witnesses, we consistently decline to disturb decisions
     based on a trial court’s singular ability to assess the
     witnesses’ credibility. (citations omitted).



           In the case at hand, Ms. Hill alleged that Mr. Hill was

irresponsible and unreliable in the care of their child.    Ms.

Hill introduced tape recorded conversations in which Mr. Hill

used what could be deemed inappropriate language.    Ms. Hill also

entered evidence that Mr. Hill at times displayed a violent

temper.   Conversely, Mr. Hill provided several witnesses who

testified that he provides quality care for his child. Mr. Hill

admitted to occasionally losing his temper and using

inappropriate language, but the Trial Court took all of these

issues into consideration in its decision as evidenced by its

ruling from the bench:

          There, of course, has been some proof where the
     husband has admittedly made a number of statements and
     said things and admits that it was inappropriate,
     shouldn’t have done it. I hear or heard the tapes and
     the ones that I heard seemed to involve a discussion
     over visitation. There was raised voices on both sides
     and they were arguing over the child visitation.

          I find that it’s appropriate that the father
     should have visitation with the child. I would caution
     you that certainly this language should never be used
     around the child, anything close to that. And, of
     course, I find that proof is that the husband has

                                  1 2
     apparently a bit of a temper that you may need to learn
     to control a little better, frankly. A lot better
     around this child.

          But, there’s no proof that the husband ever hurt
     the child, hit the child or anything. And so, he
     should have visitation. And I see no reason that it
     shouldn’t be the standard visitation.



           The evidence in this case clearly shows that both the

parent and child would benefit from visitation.   Therefore, we

hold that the evidence supports the decision of the Trial Court

and certainly does not preponderate against visitation with Mr.

Hill.   For these reasons, the visitation awarded Mr. Hill by the

Trial Court is affirmed.



           For the foregoing reasons the judgment of the Trial

Court is affirmed as modified and the cause remanded for the

Trial Court to consider the issue of rehabilitative alimony.

Costs of appeal are adjudged one-half to Ms. Hill and her surety

and one-half to Mr. Hill.




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                                                            _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                            H o u s t o n M . G o d d a r d , P . J .


C O N C U R :




     ( N o t P a r t i c i p a t i n g )
D o n T . M c M u r r a y , J .



_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
C h a r l e s D . S u s a n o , J r . , J .




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