Opinion
Perry Chancery App. No. 87-92-II.
June 24, 1988.
APPEAL FROM THE CHANCERY COURT FOR PERRY COUNTY, TENNESSEE AT LINDEN.
THE HONORABLE HENRY DENMARK BELL, CHANCELLOR.
AFFIRMED AS MODIFIED AND REMANDED.
Tommy E. Doyle, Linden, Tennessee, Attorney for the Plaintiff/Appellee.
W.C. Keaton, KEATON, TURNER SPITZER, Hohenwald, Tennessee,Attorney for the Defendant/Appellant.
OPINION
This appeal involves the dissolution of a relatively short-lived marriage. The wife sought a divorce in the Chancery Court for Perry County after approximately two years of marriage. The husband counterclaimed for divorce. After hearing the case without a jury, the trial court granted the husband a divorce and awarded the wife alimony for three years. The husband has appealed, insisting that the trial court erred by awarding alimony to the wife. We affirm the trial court's judgment as modified herein.
I.
Rita Rue Moore, now thirty-six years old, married Charles Allen Moore, now thirty-eight, in March, 1984. Mrs. Moore had a minor son from one of her two prior marriages, both of which had ended in divorce. Mr. Moore's first wife had died, and he also had a minor son. There are no children of the marriage.
Mr. Moore attended college for two years. He has a full time job at Linden Products and is also employed as a part-time meter reader. Mrs. Moore has little formal education beyond high school, although she has studied office occupations at vocational school.
Mrs. Moore suffers from schizophrenia and had been under treatment since 1980. She controls her condition with medication but admits that she stops taking her medication from time to time against medical advice. Her illness prevents her from holding a steady, full-time job.
The parties purchased a home in Perry County in 1984 using $16,000 of Mr. Moore's money and $8,000 from the sale of a mobile home Mrs. Moore owned prior to the marriage. Mrs. Moore contributed little to the couple's living expenses since she was unable to work steadily. She spent what little money she earned on herself. Consequently, Mr. Moore bore the full burden of their living expenses, the taxes on their separate and joint real property, and the support of both their children.
The Moores separated sometime between October, 1985 and May, 1986. Mrs. Moore filed for divorce in June, 1986, and Mr. Moore counterclaimed for divorce shortly thereafter. The trial court heard the case in October, 1986 and awarded Mr. Moore the divorce. The court directed that the home be sold and that the proceeds be divided among the parties. It permitted Mrs. Moore to remain in the home until it was sold. It also directed Mr. Moore to pay temporary, rehabilitative alimony for three years and determined that the amount of this alimony should be $120 per week after the house was sold.
The house was destroyed by fire in January, 1987. The parties received a net insurance recovery of approximately $38,000 for the house and its contents and for loss of use. They also gained $5,000 from the sale of the land on which the house had been located. The trial court awarded Mr. Moore approximately $17,000 and awarded Mrs. Moore the remainder. The trial court also directed Mr. Moore to begin paying alimony in the amount of $120 per week.
II.
The thrust of Mr. Moore's appeal is directed against the trial court's decision to require him to pay $120 per week in alimony until October, 1989. At the outset, he argues that Mrs. Moore is not entitled to alimony because he was awarded the divorce and because she did not ask for alimony in her complaint. He also argues that, if she is entitled to rehabilitative support, the amount and duration of the alimony ordered by the trial court is improper.
A.
We will dispose of the technical arguments first. Despite the General Assembly's sweeping revisions to the statutes governing alimony and child support, Mr. Moore insists that he should not be required to pay alimony because he was granted the divorce. While the law at one time contained a per se restriction against requiring the innocent spouse to pay alimony to the guilty one, it does no longer. Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1987) now provides that the trial court may "make an order and decree for the suitable support and maintenance of either spouse by the other spouse . . . according to the nature of the case and the circumstances of the parties." This language permits a trial court, in proper circumstances, to award alimony to the guilty spouse.
See Tenn. Code Ann. § 36-826 (repealed 1983).
See Akins v. Akins, Obion County, slip op. at 7 (Tenn.Ct.App. filed July 16, 1985).
Recognizing the inevitability of this conclusion, Mr. Moore complains that interpreting Tenn. Code Ann. § 36-5-101 to require an innocent spouse to pay support to the spouse who caused the divorce is "socialistic". This type of argument has no place in briefs filed in this Court. In any event, it is not our prerogative to determine what the general public policy of this State should be. The Tennessee Supreme Court has admonished us that this is the role of the General Assembly. Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987); Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn. 1978).
Mr. Moore also insists that the trial court should not have awarded alimony to Mrs. Moore because she did not request it in her complaint. We do not find this argument persuasive.
Mrs. Moore's complaint does not contain a specific prayer for rehabilitative maintenance and support even though Tenn. Code Ann. § 36-4-106(a) (Supp. 1987) requires divorce complaints to request "such other and further relief as the complainant may think himself or herself entitled to." While it would have been a better practice to include a specific prayer for rehabilitative maintenance and support in the complaint, Mrs. Moore's failure to do so in this case is not fatal to the trial court's alimony award.
Mrs. Moore prayed for pendente lite support and for general relief. She also averred that "the defendant should be and is able to properly support the plaintiff until she is able to get straightened out mentally and secure employment." The trial court directed Mr. Moore to provide Mrs. Moore support prior to the divorce hearing. Thus, unlike the default judgment involved inQualls v. Qualls, 589 S.W.2d 906, 909 (Tenn. 1979), this record supports the conclusion Mr. Moore was on notice that Mrs. Moore was seeking maintenance and support.
Mrs. Moore's counsel states in his brief that "this issue was discussed in the trial court and action taken in regard to it." His assertion is not substantiated because the appellate record does not contain a verbatim transcript of the proceedings in the trial court. We have only a sketchy statement of the evidence prepared in accordance with Tenn. R. App. P. 24(c), and it contains no reference to the issue. The record's shortcomings need not affect the outcome of the appeal.
Mr. Moore's counsel included a statement of the issues he intended to raise along with his notice of filing his version of the statement of the evidence. Thus, Mrs. Moore's counsel knew at the time the statement of evidence was filed that Mr. Moore intended to raise this issue. Having this knowledge, he should have filed objections to the statement in accordance with Tenn. R. App. P. 24(c) and should have requested the trial court to resolve the issue in accordance with Tenn. R. App. P. 24(e).
Tenn. R. Civ. P. 54.03 permits trial courts to grant relief and enter judgment on issues tried by consent even if they were not embodied in the pleadings. The decree entered in October, 1986 awarded Mrs. Moore support and maintenance until October, 1989. Mr. Moore did not use the post-judgment avenues available to him to obtain relief from this alleged error. He continued to remain silent four months later when the trial court conducted further hearings concerning the amendments to the judgment required after the parties' house was destroyed.
Tenn. R. Civ. P. 54.03 provides, in part:
Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.
As a general rule, this Court is reluctant to set aside a trial court's decision based on perceived defects that were not brought to the trial court's attention. If there was a variance between the pleadings, proof, and the relief awarded, Mr. Moore should have brought the problem to the trial court's attention rather than raising it for the first time on appeal. American Trust Banking Co. v. Parsons, 21 Tenn. App. 202, 206, 108 S.W.2d 187, 189 (1937).
In light of the entire record, we have determined that Mr. Moore suffered no prejudice by Mrs. Moore's failure to include a specific prayer for rehabilitative maintenance and support in her divorce complaint. Therefore, in accordance with Tenn. R. App. P. 36, we find that Mr. Moore is not entitled to relief on this ground.
B.
Mr. Moore also takes issue with the amount and duration of the temporary alimony awarded by the trial court. Stressing the manner in which the trial court divided the marital property, he insists that he has been economically disadvantaged by the divorce and that Mrs. Moore is not entitled to any rehabilitative support.
The amount and duration of an alimony award is arrived at by weighing the facts of each case in light of the factors contained in Tenn. Code Ann. § 36-5-101(d). See Williams v. Williams, 146 Tenn. 38, 46, 236 S.W. 938, 940 (1922); Stone v. Stone, 56 Tenn. App. 607, 615-16, 409 S.W.2d 388, 392-93 (1966). This is a highly subjective process, not an exact science. Accordingly, trial courts are given wide latitude in their decisions with regard to alimony, and this Court is generally disinclined to alter a trial court's decision unless the facts clearly require us to do so. Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn.Ct.App. 1986); Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn.Ct.App. 1984).
We have reviewed the record and the trial court's decision in accordance with Tenn. R. App. P. 13(d) and in light of the factors contained in Tenn. Code Ann. § 36-5-101(d). While the facts do not support depriving Mrs. Moore of temporary, rehabilitative support, we have determined that the amount of support is too high.
The weight to be given to each of the factors in Tenn. Code Ann. § 36-5-101(d) depends on the nature of the proof in each case. Factors of primary importance in one case may not be as important in another case where the facts are different.
Courts generally begin with the proposition that the two factors to be considered first are the needs of the economically disadvantaged spouse and the ability of the other spouse to provide support. See Fisher v. Fisher, 648 S.W.2d 244, 246-47 (Tenn. 1983); Barker v. Barker, 671 S.W.2d 843, 847 (Tenn.Ct.App. 1984). If one spouse is economically disadvantaged compared to the other, the courts are inclined to provide some type of support. The amount and duration of the support depends upon the paying spouse's ability to provide support, the disadvantaged spouse's role in causing failure of the marriage, and other factors set forth in Tenn. Code Ann. § 36-5-101(d).
It is difficult to argue that Mrs. Moore is not economically disadvantaged when compared with Mr. Moore. Her future employment prospects and ability to support herself are dubious in light of her mental illness, lack of formal education or marketable skills, and unattractive employment history. Her prospects for further education and training are remote. Without steady employment, Mrs. Moore faces the prospect of slowing dissipating what few assets she has to support herself.
In comparison, Mr. Moore's financial condition is more stable and secure. He has steady, full-time employment and a part-time job and is able to bring home approximately $14,000 annually. He pays no rent because he lives with his parents, and his only major expenses appear to be groceries, maintenance of his truck, and insurance. The costs of raising his child appear to be in large part covered by social security death benefits. Accordingly, the record supports the conclusion that Mr. Moore is able to pay rehabilitative support and maintenance to Mrs. Moore.
What remains to be decided is the amount and duration of this support. Mr. Moore argues that no support is needed in light of the manner in which the trial court divided the marital property. He states that Mrs. Moore's share of the insurance proceeds "well compensated [her] for her 20 or 26 month marriage to this husband [emphasis in original]." We think Mr. Moore has placed too much emphasis on the manner in which the trial court divided the marital property.
Both parties had accumulated separate property by the time they were married. They accumulated little marital property of significance with the exception of their house. Their equity in the house was primarily due to the contributions of separate property each of them made when they bought it.
The house was destroyed by fire before the final decree was entered. The trial court's distribution of the insurance proceeds was intended to restore, to the extent possible, the separate property each party had contributed to the purchase of the house. Since most of the contents in the house belonged to Mrs. Moore, she received the greater portion of the insurance proceeds for the loss of the contents. The fire obviously depressed the value of the asset. Thus, the erosion of Mr. Moore's financial condition after the divorce is due as much to the destruction of the house as it is the divorce.
The manner in which the trial court apportioned the insurance proceeds does not, by itself, warrant reducing Mr. Moore's support obligations. However, a combination of this factor with others contained in Tenn. Code Ann. § 36-5-101(d) does. The Moores' marriage lasted little more than two years. Mr. Moore bore the burden of supporting the family, including Mrs. Moore's child from an earlier marriage, with little help from Mrs. Moore. There is no indication that his conduct precipitated the divorce. The manner in which the trial court divided the marital property resulted in Mr. Moore bearing a greater portion of the loss caused by the destruction of the home.
Based on these facts, we have determined that the record supports the trial court's decision that Mrs. Moore needs temporary, rehabilitative support. We have also determined that requiring Mr. Moore to pay support to Mrs. Moore for three years following the entry of the divorce decree was reasonable. However, we have determined that the amount of support should be reduced from $120 per week to $60 per week.
Mr. Moore also expresses a concern about the language in the final decree preserving the trial court's authority to alter his support obligation. This language merely reflects a trial court's recognized authority to modify that amount of an alimony in futuro award upon a showing of a material change in circumstances. Naron v. Naron, 218 Tenn. 125, 130-32, 401 S.W.2d 766, 768-96 (1966); Aleshire v. Aleshire, 642 S.W.2d 729, 732 (Tenn.Ct.App. 1981).
III.
The judgment of the trial court is affirmed as modified by this opinion, and the case is remanded to the trial court for the entry of whatever other orders may be necessary and appropriate. The reduction in the amount of alimony is prospective only and shall take effect upon the issuance of the mandate. The costs of this appeal are taxed in equal proportions against Rita Rue Moore and Charles Allen Moore and their respective sureties for which execution, if necessary, may issue.