MYONG S. HUANG,                )    DAVIDSON CIRCUIT
                               )    No. 96D-1893
     Plaintiff/Appellee        )
                               )    Appeal No.
v.                             )    01A01-9709-CV-00462
                               )
JIMMY SHIN HUANG               )
                               )
     Defendant/Appellant       )
                               )
                                       FILED
v.                             )          April 29, 1998
                               )
MYONG NAN GATES,               )      Cecil W. Crowson
                               )     Appellate Court Clerk
     Intervenor/Appellee       )


            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE


     APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
                AT NASHVILLE, TENNESSEE


           HONORABLE MARIETTA M. SHIPLEY, JUDGE



William B. Bruce
Bruce, Weathers, Corley, Dughman & Lyle
315 Deaderick Street, Suite 2075
Nashville, TN 37238-2075
ATTORNEY FOR DEFENDANT/APPELLANT

Mary Arline Evans
Philip W. Duer
Stanley A. Davis
214 Third Avenue North
Nashville, TN 37201
ATTORNEYS FOR PLAINTIFF/APPELLEE
AND FOR INTERVENOR/APPELLEE



                     AFFIRMED AND REMANDED


                           WILLIAM H. INMAN, SENIOR JUDGE
CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
BEN H. CANTRELL, JUDGE
MYONG S. HUANG,                       )       DAVIDSON CIRCUIT
                                      )       No. 96D-1893
      Plaintiff/Appellee              )
                                      )       Appeal No.
v.                                    )       01A01-9709-CV-00462
                                      )
JIMMY SHIN HUANG                      )
                                      )
      Defendant/Appellant             )
                                      )
v.                                    )
                                      )
MYONG NAN GATES,                      )
                                      )
      Intervenor/Appellee             )


                                 OPINION

      In this divorce action the trial court found that Husband and Wife were

both guilty of inappropriate marital conduct and granted each a divorce from the

other pursuant to T.C.A. § 36-4-129. Custody of the parties’ minor child, age

three, was granted to Wife, who was awarded rehabilitative alimony of $500.00

per month for sixty months and alimony in solido of $500.00 per month which

was to terminate when the note encumbering the Wife’s van, in the approximate

amount of $12,000.00, was paid in full. In a separate order on an intervening

petition, the trial court entered judgment against Husband and in favor of

Intervenor Myong Nan Gates on a Promissory Note.

      Husband appeals, raising the issues of (1) award of sole custody of the

child to the mother, (2) award of rehabilitative alimony, (3) award of alimony in

solido, (4) judgment against him and in favor of the Intervenor on the note.

       Our review of the findings of fact made by the trial Court is de novo

upon the record of the trial Court, accompanied by a presumption of the

correctness of the finding, unless the preponderance of the evidence is

otherwise. TENN. R. APP. P., RULE 13(d).

                                          2
      Jimmy Shin Huang [“Husband”] and Myong S. Huang [“Wife”]were

married May 14, 1992 in Houston, Texas. One child, Lisa Huang, now four

years old, was born of this marriage. One month later Wife and the child moved

to Texas, where Wife worked in her sister’s dance club while Husband

remained in Tennessee for the next 18 months. He went to Texas once a month

“to make money at the flea market,” visit his family and obtain some of Wife’s

earnings. The child’s paternal grandparents took the child to Taiwan for six of

the 18 months, and when they returned the child to Husband in Tennessee, Wife

returned from Texas to Tennessee and the family lived together briefly. The

marriage failed soon thereafter; Wife alleged Husband beat her and emotionally

abused her; Husband says Wife drank excessively, frequently disappeared from

home, and maintained phone contact with a former boyfriend whom she had

lived with briefly while she was in Texas.

       Wife filed an earlier petition for divorce which was nonsuited. At the

time of the nonsuit, Husband signed a promissory note for $85,000.00 to Wife’s

sister, Myong Nan Gates [“Intervenor”] for monies allegedly borrowed during

the marriage. Wife filed this petition for divorce on June 26, 1996 and her sister

filed a petition to intervene on July 19, 1996 asking the court to recognize the

promissory note as a marital debt of the parties and to declare and impose a lien

in her favor on any assets determined to be Husband’s property.

                                         I

      Husband appeals the award of sole custody of the parties’ minor daughter

to Wife, whom he characterizes as “a woman who has actively engaged in

prostitution while she had the girl in her possession.”




                                        3
      Award of custody is governed by T.C.A. § 36-6-106, which sets out the

determinative factors: (1) emotional ties, (2) who is the primary care giver, (3)

continuity, (4) stability, (5) parental health, (6) home, school and community

records, (7) child’s preference (if older), (8) evidence of physical or emotional

abuse, and (9) character and behavior of other persons associated with parents.

The best interest of the child is the paramount consideration. Bah v. Bah, 668

S.W.2d 663 (Tenn. App. 1983).

       The parties’ child was born in Tennessee and accompanied her mother to

Texas when she was one month old. During their 18 months’ stay, the mother

worked as a nightclub dancer, was arrested and subsequently convicted of

prostitution. Wife testified that her conviction was due to her involvement in a

business in which others were prostitutes, but that she was not involved in

sexual misconduct. Further, that her husband had encouraged her to continue

the job, insisting she return to Texas and her work at the nightclub to make

more money. Husband testified that he knew she was working at her sister’s

club but denied any knowledge of prostitution and testified that he discovered a

court document in Wife’s purse charging prostitution, hired a private detective,

and thereby learned the source of Wife’s income.

      The child has been in her mother’s physical custody for all of her life

except for a six month visit to Taiwan with grandparents. Husband’s very

emotional testimony about his love and for his child was persuasive; however,

the evidence indicates his business responsibilities have required that most or

all of the child’s care be provided by her mother.

      Wife alleged incidents of Husband’s physical and emotional violence

against her and one incident in which he beat the child with a stick, which



                                         4
Husband denied. The parties were ordered by the court to attend a class on

helping the child deal with their divorce, and Husband failed to attend until a

show cause order was entered.

      The trial court awarded custody to the mother with liberal visitation to the

father, and further ordered that (1) if she desires to take the child out of

Tennessee for more than one month she must apply to the Court for permission,

and (2) she is restrained from working at the club formerly owned by her sister

in Texas, and from being around people in that business, when the parties’

minor child is in her possession.

      We find the preponderance of the evidence supports the trial court’s

custody order.

                                          II

      Husband contends the award of rehabilitative alimony was improper

because Wife failed to show any intent or capacity for training that would

increase her earning capacity.

      T.C.A. § 36-5-101(d) provides factors to determine whether rehabilitative

alimony is appropriate: (1) resources, earning capacities and needs of the

parties, (2) education/training necessary to improve earning capacity, (3)

duration of the marriage, (4) age and health of the parties, (5) presence of a

minor child in the home, (6) separate assets of each party, (7) property

settlement, (8) standard of living during the marriage, (9) tangible and

intangible marital contributions of the parties, (10) relative fault of the parties,

(11) other equitable factors.

      Husband in this case had business assets of $194,000.00, wages of

$35,800.00 in 1996 from his business, and gambling income from Tunica,



                                          5
Mississippi in 1995 of $67,505.00. Wife had a 1996 gross weekly salary of

$200.00 from her job in a dry cleaners. She testified that she needs schooling in

the English language and that her ability to earn a good income is limited by her

child-care responsibilities.

      We find the preponderance of the evidence supports the trial court’s

award of rehabilitative alimony to Wife.

                                         III

      Husband appeals the award of alimony in solido on grounds that despite

its designation, the award had the effect of giving Wife the parties’ Toyota

Previa van and burdening Husband with the associated debt. He argues that

when practicable, the debts should follow the assets they purchased, citing

Mondelli v. Howard, 780 S.W.2d 769 (Tenn. App. 1989), and that the trial court

abused its discretion in failing to follow this equitable principle.

      The criteria for allocating marital debts are: (1) which party incurred the

debt, (2) the purpose for which the debt was incurred, (3) which party benefited

from the debt, and (4) which party is best off to assume the obligation to repay

the debt. Mondelli, supra.

      The trial court’s judgment provides:

      “14. That the Husband should pay alimony in solido to the Wife in
      the sum of $500.00 per month, commencing March 15, 1997, with
      a like amount due on the 15th day of every month thereafter, and
      which should terminate when the note encumbering the Wife’s van,
      in the approximate amount of $12,000.00, is paid in full, and which
      should not be subject to further modification or termination by the
      Wife’s death or remarriage;

      15. That the Wife should be awarded the Toyota Previa van and
      the Husband should be awarded the Dodge truck, and that each
      party should be solely responsible for the notes encumbering their
      respective vehicles, and indemnify and hold each other harmless
      thereon;”



                                          6
      The evidence is abundant that Husband has the ability to earn a

substantial income from his business and other ventures, while Wife’s monthly

earnings as a dry cleaning worker are completely inadequate for her support.

We find the trial court did not abuse it discretion in awarding the van and

alimony in solido.



                                          IV

      Finally, Husband appeals the separate order by the trial court which

entered judgment against him and in favor of Intervenor Myong Nan Gates on a

promissory note.

      The Intervenor alleged in her petition that she and other family members

had loaned Husband various sums of money throughout the marriage, most of

which was used by Husband for his business ventures. As the parties’ marriage

deteriorated, Intervenor became concerned about repayment of these loans and,

on March 20, 1996, obtained a promissory note for $85,000.00 from Husband

secured by a Deed of Trust on his business property. Three months later Wife

filed this action for divorce. Intervenor sought the Court’s recognition and

protection of her interest.

      Husband answered that he signed the note because of his Wife’s threat to

prevent his visitation with their child, and that his total indebtedness to his

sister-in-law was only $41,000.00, with a balance of approximately $35,000.00

at the time he signed the note. However, Exhibit 11 to his deposition is his

handwritten note containing the following names and numbers, which Wife says

is his calculation of his debts:

      Sister                  85,000.00
      Credit                  20,000.00


                                          7
        Mr. Taylor                 70,000.00
        Uncle                      45,000.00
                                   220,000.001

        Husband admitted writing the note but denied that the $85,000.00 figure

had any particular significance and continued to insist his debt to his sister-in-

law was never more than $50,000.00.



        The trial court found:

        “ . . . that there is no specific defense of fraud or duress alleged by
        [Husband] nor any allegation to reflect that [Husband] was forced to
        sign the Note upon a threat, physical or psychological harm, or that
        his name was forged or any of the major defenses to a contract action.
        The Court finds that the Note was very clear in its terms and there
        were no ambiguities and nothing to indicate that the terms of the Note
        were difficult to understand. The Court therefore will not hear any
        evidence as to the Note or to any amounts paid prior to the date of
        execution of the Note.”

        The court entered a separate judgment for Intervenor for $85,000.00 less

$2,500.00 Husband paid to Intervenor after its execution. Husband had also

paid into the Clerk’s Registry $23,918.00 from the sale of other real property,

which the court released, with the acquiescence of Husband, to Intervenor in

partial satisfaction of the judgment. The court found the balance owing by

Husband to Intervenor to be $58,582.00 and ordered that the lien against

Husband’s business property which secured the promissory note should remain

in effect, subject to a pre-existing first mortgage to Mr. Brown Taylor.

        Husband contends he sufficiently pled the affirmative defense of duress,

and if not, he should have been allowed to amend his answer under T. R. C. P.

8.03 and present evidence that his debt to Intervenor was substantially less.




        1
          Husband ’s testimony indicated he had credit card debt of appro ximately $20 ,000.00, ow ed a first
mortgage of $70,000.00 on his business property to Mr. Brown Taylor and his wife Sammie Taylor, and owed
$45,00 0.00 to h is uncle for a loan he obtained to purch ase inven tory for h is business.

                                                       8
Wife says the trial court correctly applied T. R. C. P. 12.06 and struck his

insufficient defense.

      We find no motion to amend or for leave to make an affirmative defense.

At best, Husband says only that he did not owe the aggragated indebtedness of

$85,000.00 at the time he executed the note and Deed of Trust. His explanation

therefor was the claimed threat that if he did not execute the note, visitation

privileges would be withheld. This is hardly duress; moreover, he later

acknowledged an indebtedness of $85,000.00 to an unnamed creditor.

      Husband argues that the case should be remanded to allow him the

opportunity to produce evidence that he did not owe his sister-in-law

$85,000.00 at the time he executed the note to her; but the pleadings do not

admit of this recourse, since appellant offered no affirmative defenses to the

note which he admits he executed and the parol evidence rule becomes an

insurmountable obstable.

      The judgment of the trial court is affirmed with costs assessed to the

appellant.



                                        ________________________________
                                        William H. Inman, Senior Judge

CONCUR:



___________________________
Henry F. Todd
Presiding Judge, Middle Section



_________________________
Ben H. Cantrell, Judge



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