Deborah Smith v. Riley Smith ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 20, 2002 Session
DEBORAH BOWERS SMITH v. RILEY DEAN SMITH
A Direct Appeal from the Chancery Court for Gibson County
No. H4486 The Honorable George Ellis, Chancellor
No. W2002-00477-COA-R3-CV - Filed January 15, 2003
This is an appeal of a final decree of divorce and the order of the trial court on the moton to
alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court,
and injunctive relief for Wife’s alleged harassment of Husband. Husband appeals. We affirm in
part, reverse in part, and remand.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Affirmed in Part, Reversed in
Part, and Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY KIRBY LILLARD, J., joined.
C. Timothy Crocker, Michael A. Carter, Milan, For Appellant, Riley Dean Smith
Mary G. Middlebrooks, Jackson, For Appellee, Deborah Bowers Smith
OPINION
Deborah Bowers Smith (“Ms. Smith,” “Appellee,” or “Wife”) and Riley Dean Smith (“Mr.
Smith,” “Appellant,” or “Husband”) were married on July 24, 1977. There are two children born
of the marriage, Brentley Dean Smith (d/o/b January 20, 1978) and Brooke Deanna Smith (d/o/b July
17, 1984). Ms. Smith filed a complaint for Absolute Divorce on February 8, 2001, citing
irreconcilable differences and marital misconduct on the part of Mr. Smith. She filed an Affidavit
in support of her Complaint on February 15, 2001. The Affidavit reads in pertinent part as follows:
1. That my gross income from my employment with Gibson County
School System is approximately $2,904.50 per month; net income is
approximately $1,936.22 per month.
2. That I have no additional sources of income.
* * *
4. That [Mr. Smith’s] gross income from his employment with Jones
Company, Ltd. is approximately $13,531.26 per month ($162,375.22
for year 2000).
Attached to this Affidavit was an exhibit listing monthly household expenses, which totaled
$7,024.55.
Mr. Smith filed an Answer and Counter-Complaint on February 23, 2001, alleging
inappropriate marital conduct on the part of Ms. Smith. The Counter-Complaint further stated that:
5. [Mr. Smith] avers that [Ms. Smith] is calling him at all hours of
the day and night, harassing him, making threatening statements
including, but not limited to, taking the parties’ minor daughter and
moving out of State in order to prevent him from having a
relationship with his daughter and threatening to kill him and herself.
* * *
[Mr. Smith prays:] That a Restraining Order issue, enjoining [Ms.
Smith], her agents or anyone acting in her behalf, from coming about,
telephoning, threatening, harassing, bothering, or having any contact
with [Mr. Smith], either at his residence or his workplace, except as
it relates to visitation issues concerning the parties’ minor daughter,
and from removing the parties’ minor daughter from the jurisdiction
of this Court, during the pendency of this cause.
The chancellor entered a Temporary Restraining Order on February 23, 2001 and set a
hearing for March 20, 2001 to determine whether a Permanent Injunction should be issued. On
March 20, 2001, a hearing was held on motions for temporary child support and alimony pendente
lite filed by Ms. Smith and on the Temporary Restraining Order granted to Mr. Smith. An Order was
entered on April 27, 2001, which dissolved the Temporary Restraining Order and ordered Mr. Smith
to pay alimony pendente lite to Ms. Smith in the amount of Five Hundred Dollars ($500) per month.
Mr. Smith was also ordered to maintain all health insurance, marital debts, and mortgage payments
pending a hearing of the case. A Temporary Parenting Plan was entered on April 27, 2001, requiring
Mr. Smith to pay Nine Hundred Dollars ($900) per month in child support.
On April 24, 2001, Ms. Smith filed a Motion for Provision of Vehicle, which states in
pertinent part:
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1. That Defendant, Riley Dean Smith, was providing [Ms. Smith]
with a 2000 Volvo and paying the lease payments on said vehicle by
Court Order.
2. That [Ms. Smith] was involved in a motor vehicle accident, which
totaled the Volvo.
3. That [Mr. Smith] has refused to provide [Ms. Smith] with a
comparable vehicle.
THEREFORE, [Ms. Smith] moves this Honorable Court as follows:
1. That [Mr. Smith] be required to provide [Ms. Smith] with a
vehicle comparable to a 2000 Volvo.
On May 18, 2001, a status hearing was held. An Order was entered on May 31, 2001, which
granted Mr. Smith’s Interlocutory Appeal, set Ms. Smith’s Motion for Provision of Vehicle for
hearing on June 12, 2001 and set the matter for trial on August 15, 2001 due to the failure of
mediation attempts. Ms. Smith filed a Motion for Civil Contempt against Mr. Smith on June 7,
2001, alleging, inter alia, that he had failed to provide her with a means of transportation and that
he had failed to pay a cellular telephone bill.
On August 10, 2001, Mr. Smith filed a Petition for Restraining Order and Permanent
Injunction, alleging that, since the Temporary Restraining Order had been dissolved, Ms. Smith had
continued to harass and threaten him.
The non-jury trial was held on August 15, 2001. Prior to trial, the parties stipulated to
grounds of adultery on the part of Mr. Smith. On September 28, 2001, Ms. Smith filed a Motion
for Restraining Order, which reads in pertinent part as follows:
The Plaintiff, Deborah Bowers Smith, moves this Court for a
Restraining Order. In support of said Motion, the Plaintiff would
show as follows:
1. That Plaintiff is informed, and therefore believes, that the
Defendant, Riley Dean Smith, has been terminated from his
employment with The Jones Company.
2. That Plaintiff is informed, and therefore believes, that Defendant
now has in his possession all liquid assets from his retirement fund
with The Jones Company.
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3. That Plaintiff is informed, and therefore believes, that Defendant
received a substantial severance package upon his termination of
employment.
Chancellor Ellis issued a temporary Restraining Order on September 28, 2001, pending a hearing
on Ms. Smith’s Motion. A hearing was held on October 22, 2001. An Order for Absolute Divorce
was entered on November 21, 2001. The Order reads in pertinent part as follows:
...After statement of counsel, testimony of certain witnesses,
submission of certain exhibits, and upon the entire record, the Court
issued its ruling, as follows:
* * *
The Court finds there is a great disparity in the incomes of the parties,
with Mr. Smith’s income for the last three years being $151,670.28,
$188,800.65, and $162,375.22, and that for the first seven months of
this year his income has been $127,990.40. Deborah Bowers Smith’s
income as a teacher is $34,854.
The Court finds that the parties have $407,056 in debt and that
$336,000 of this is in real estate, leaving a consumer debt in the
amount of $71,056. The Court finds that Deborah Bowers Smith as
of this year makes about 16 percent of the income of Riley Dean
Smith, and therefore, she shall be ordered to pay the debt to UP Bank
in the amount of $2,000, a debt to David Bowers in the amount of
$5,225, and a Mastercard bill in the amount of approximately $1,150,
$1,100 to Summit Vacuum and $1,000 to Service Merchandise.
Riley Dean Smith is ordered to pay the remaining marital debts as
listed on the exhibits.
* * *
As to the question of alimony in futuro, the Court finds that the
standard of living enjoyed by the Smiths was a good one, above
average, and that Riley Dean Smith’s actions, as he stipulated to, has
[sic] caused the rupture of this marriage. And to force Deborah
Bowers Smith to a lower standard of living because of the infidelity
of Riley Dean Smith would not be consistent with the laws of the
State of Tennessee, and, therefore, alimony in futuro is ordered to be
paid by Riley Dean Smith in the amount of $3,000 per month to
Deborah Bowers Smith until her death or remarriage.
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* * *
The Court further finds that Riley Dean Smith was in contempt of
Court by not replacing the leased vehicle that was wrecked, but,
however, he did provide Deborah Bowers Smith with a vehicle, and
the Court is going to tax attorney’s fees and costs for this matter as
the only sanction that’s brought against Riley Dean Smith
* * *
IT IS THEREFORE ORDERED:
* * *
3. That Husband shall receive the real property located at 168
Pleasant Hill Road, Humbolt, Gibson County, Tennessee...one-half
(½) of Jones Retirement Account ($144,407.36); one-half (½) of
Phantom Stock ($109,158.50)...
4. That Wife shall be awarded...one-half (½) of Jones Retirement
Account ($144,407.36); one-half (½) of Phantom Stock
($109,158.50)...2000 Dodge automobile...
* * *
10. That Husband shall pay to Wife as alimony in futuro the sum of
$3,000 per month, beginning September 1, 2001, and the first day of
each month thereafter. Said alimony shall be payable until the
remarriage or death of Wife.
* * *
13. That Husband shall pay as alimony in solido, the sum of
$7,988.09 toward Wife’s attorney fees, to Wife’s attorney of record,
Middlebrooks & Gray, P.A....
On November 21, 2001, Mr. Smith filed a Motion to Alter or Amend the Judgment.
Mr. Smith also filed a Motion for Clarification concerning his ability to use his severance package
from Jones to pay expenses.
On December 6, 2001, Ms. Smith also filed a Motion to Alter or Amend, which reads in
pertinent part as follows:
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3. That Wife was awarded one-half (½) of the Phantom Fund with a
value of $109,158.50. Husband lost the Phantom Fund when he was
terminated for wilful misconduct from his employment with The
Jones Company. Therefore, Wife’s one-half (½) of this fund should
be taken from Husband’s one-half (½) of the Jones Retirement Fund.
Following a hearing on all motions on December 11, 2001, the chancellor entered an Order
February 8, 2002, which reads in pertinent part as follows:
ORDERED:
1. That the Defendant’s [Riley Dean Smith’s] Motion to Alter or
Amend is denied.
* * *
3. That the Plaintiff’s [Deborah Bowers Smith’s]...Motion to Alter
or Amend regarding the loss of the Phantom stock is granted.
Plaintiff shall be awarded the sum of $109,158.50 from the
Defendant’s one-half (½) of The Jones Retirement Fund in order to
compensate her for the loss of one-half (½) of the Phantom stock.
4. That the Motion for an award of additional fees and costs in the
amount of $3,211.35 is granted. Defendant shall pay as alimony in
solido, said sum to Plaintiff’s attorney of record, Middlebrooks &
Gray, P.A....
5. That the Plaintiff’s Motion for Discretionary Costs is granted in
the amount of $665.95 for court reporter fees. Defendant shall pay as
alimony in solido said sum to Plaintiff’s attorney of record,
Middlebrooks & Gray, P.A.
A Qualified Domestic Relations Order was entered on February 19, 2002. Mr. Smith filed
Notice of Appeal on February 21, 2002. Pending appeal and pursuant to Tenn. R. App. P 62.03, Mr.
Smith filed a Motion and Memorandum of Law to Stay Execution of Qualified Domestic Relations
Order on March 13, 2002. The Motion to Stay Execution of Qualified Domestic Relations was heard
on April 4, 2002. The Motion was denied by Order entered on May 1, 2002.
Mr. Smith appeals, raising four issues for our review as stated in his brief:
I. The trial court erred by failing to equitably divide the marital
property and marital debts.
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II. The trial court erred in its award of alimony in futuro.
III. The trial court erred by holding Defendant Riley Dean Smith in
contempt for not providing Deborah Bowers Smith with a comparable
vehicle to replace the vehicle she intentionally wrecked.
IV. The trial court erred by failing to permanently enjoin Wife from
harassing Husband.
The trial court erred by failing to equitably
divide the marital property and marital debts.
As part of his compensation package from The Jones Company, Mr. Smith owned
phantom stock, which was valued at $218,0000 at the time of trial but was unvested. In addition
to the phantom stock, Mr. Smith had a retirement plan with Jones, which was vested. The
chancellor’s initial order divided both the value of Mr. Smith’s retirement account and the
phantom stock evenly. Following this initial division of property, Jones terminated Mr. Smith’s
employment for cause. Because it was not vested, the phantom stock evaporated upon Mr.
Smith’s termination.
Both parties filed motions to alter or amend, which were heard on December 11, 2001.
Following that hearing, the chancellor awarded Ms. Smith $109,158.50 from Mr. Smith’s one-
half of The Jones Company retirement account to compensate her for the loss of the value of the
phantom stock. Consequently, Mr. Smith kept $35,248.86 of his Jones Retirement Plan, while
Ms. Smith received $253,565.86.
Before addressing Mr. Smith’s argument, we note that, although there is a presumption
that marital property is owned equally, there is no presumption that marital property should be
divided equally. Bookout v. Bookout, 954 S.W.2d 730, 731 (Tenn. Ct. App. 1997). Thus, an
equitable division of the marital property need not be an equal division of property. Id. A trial
court is afforded wide discretion when dividing the marital property, and its distribution will be
given “great weight” on appeal. Ford v. Ford, 952 S.W.2d 824, 825 (Tenn. Ct. App. 1997).
Guidelines for the equitable division of marital property are set forth in T.C.A. § 36-4-121 (Supp.
2002), which provides, in relevant part:
(a)(1) In all actions for divorce or legal separation, the court having
jurisdiction thereof may, upon request of either party, and prior to any
determination as to whether it is appropriate to order the support and
maintenance of one (1) party by the other, equitably divide, distribute
or assign the marital property between the parties without regard to
marital fault in proportions as the court deems just.
* * *
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(c)In making equitable division of marital property, the court shall
consider all relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills,
employability, earning capacity, estate, financial liabilities and
financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the
education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital
assets and income;
(5) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate
property, including the contribution of a party to the marriage as
homemaker, wage earner or parent, with the contribution of a party
as homemaker or wage earner to be given the same weight if each
party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division
of property is to become effective;
(9) The tax consequences to each party, costs associated with the
reasonably foreseeable sale of the asset, and other reasonably
foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse;
and
(11) Such other factors as are necessary to consider the equities
between the parties.
Mr. Smith argues that the trial court considered Mr. Smith’s marital fault in dividing the
stock and retirement plan, thus violating T.C.A. § 36-4-121 (a)(1). Before addressing Mr.
Smith’s issue, we first note that T.C.A. § 36-4-121 (a)(1) only forbids consideration of marital
fault, that is the fault that led to the dissolution of the marriage. However, there is nothing in the
language of the statute to indicate that the court may not consider other types of fault in its
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division of property. In fact, T.C.A.§ 36-4-121(c)(5) specifically allows a court to consider the
contribution a party has made to the dissipation of marital property. We now turn to the record in
this case, which reads in relevant part:
THE COURT: ...the fact that Mr. Smith’s inappropriate behavior at
work with the same woman who caused this divorce, or about the
same woman, certainly works at an inequitable disadvantage to Mrs.
Smith, so I’m going to grant that the value of the phantom fund be
deducted from the retirement.
* * *
MS. MIDDLEBROOKS [counsel for Ms. Smith]: They’ve frozen the
retirement fund.
THE COURT: It has not been distributed?
MS. MIDDLEBROOKS: No, sir.
THE COURT: As far as that, the [$]109,000 will go to Mrs. Smith to
make up the loss due to his inappropriate behavior.
* * *
MR. CROCKER [counsel for Mr. Smith]: Your Honor, please, the
award by the Court effectively giving her credit for the phantom
stock, one half of that?
THE COURT: The Court gave her one half, and your client–the Court
is ruling that he had given her one half, and it was lost only because
of your client’s behavior since the divorce. So yes, sir, that’s what
the Court has ruled.
* * *
MR. CROCKER: The Court has ruled that the net effect of that is
going to be that Mrs. Smith has a retirement of [$]253,000–
THE COURT: No. The net effect is that the Court is ruling that Mrs.
Smith shall get the same amount she got the day of the divorce, and
it’s Mr. Smith’s conduct that has brought us to this point.
* * *
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MR. CROCKER: But the net effect of the bottom line is that she’s
going to end up with about [$]300,000 in retirement, and he’s going
to end up with [$]35,000 approximately, and I would respectfully
submit that that’s not an equitable division.
THE COURT: Well, what about your client’s conduct? That’s where
we are. That’s why we had the divorce; that’s why you’re back today.
If there’s any reason, it’s due to your client’s conduct.
Although phrases such as “because of your client’s behavior since the divorce” point to a
type of fault that the court may consider in dividing the marital assets, the majority of the
relevant passages cited above indicate that it is marital fault that is the gravamen of the trial
court’s decision. Because we find that the trial court’s division of the phantom stock was based
upon consideration of Mr. Smith’s marital fault, and that such consideration was in direct
violation of T.C.A. § 36-4-121 (a)(1), we must hold that the division constitutes an abuse of
discretion.
However, even if we are mistaken that the chancellor’s decision was based upon Mr.
Smith’s marital fault as opposed to his fault in losing his job, we would nonetheless conclude
that the evidence that came into existence after the trial is not to be considered when deciding a
Tenn. R. Civ. P. 59 motion.1 The purpose of a Tenn. R. Civ. P. 59 post-trial motion is to prevent
unnecessary appeals by giving the trial court the opportunity to correct errors which occur before
the entry of a judgment. In Chadwell v. Knox County, 980 S.W.2d 378 (Tenn. Ct. App. 1998),
the Court said:
The motion to alter or amend allows the trial court to correct any
error as to the law or facts that may have arisen as a result of the
court overlooking or failing to consider matters.
Id. at 383.
The final decree entered after the evidentiary hearing awarded one-half of the phantom
stock to each of the parties. The decision conformed to the mandate of T.C.A. § 36-4-
121(b)(3)(C), that the property divided be “valued as of a date as near as reasonably possible to
the final divorce hearing date.”
In this case, there are no allegations of error in the Chancellor’s initial dealing with the
facts presented at the hearing. Rather, Ms. Smith’s Motion to Alter or Amend concerning the
1
For clarification, we qu ickly note that we are not addressing newly discovered evidence in this case. Here,
the fact at issue, M r. Smith’s loss of em ploym ent with Jones, actually came into being after the hearing. Newly
disco vered evidence, on the other hand, is that evidence which is in existence at the time of trial but is not ascertained
at that time.
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Phantom stock is predicated upon a fact that came into existence after the hearing, to wit Mr.
Smith’s termination from Jones, which fact shall not be considered in altering or amending the
original Order of November 21, 2001.
The November 21, 2001 Order awarded one-half of the Phantom stock and one-half of
the Jones Retirement Account to each party, and awarded Ms. Smith the entire Horace Mann
Annuity and the entire TCRS Account. From the evidence presented at the August 15, 2001
hearing and from the record up to and including that date, we find that this was an equitable
division of the property. Having stated supra that Mr. Smith’s loss of employment and/or his
fault in that termination is a post-hearing fact, which should not be considered on a Tenn. R.
App. P. 59 motion, we must reverse the February 8, 2002 order so that the division of retirement
accounts is in line with the original Order of November 21, 2001. To affirm the February 8, 2002
Order of the trial court, would be to award Ms. Smith the following in terms of division of the
retirement accounts:
$253,565.86 = Ms. Smith’s award of one-half the Jones Retirement
Plan ($144,407.36) + $109,158.50 of Mr. Smith’s half of the Jones
Retirement Account to compensate Ms. Smith for the loss of the
Phantom stock.
$32,636.30 = Total Horace Mann Annuity
$30,223.12 = Total TCRS Account
Ms. Smith’s Total = $316,425.28
Mr. Smith’s share of the retirement accounts would be $35,238.86, which is his half of the Jones
Retirement Fund minus $109,158.50 to compensate Ms. Smith for the loss of the Phantom stock.
In short, Ms. Smith would receive almost nine (9) times the amount Mr. Smith receives in
division of the retirement funds. Since the November 21, 2002 Order gave Ms. Smith only 1.25
times the amount Mr. Smith received in division of retirement funds, we find the February 8,
2002 division inequitable, particularly in light of the fact that Ms. Smith has been awarded
$3,000 per month in alimony in futuro, and that Mr. Smith has been awarded the bulk of the
marital debts. The trial court erred in amending the division of marital property.
The trial court erred in its award
of alimony in futuro
Guidelines for the determination of alimony are set forth in T.C.A. § 36-5-101(d), which
reads in pertinent part as follows:
(d)(1) It is the intent of the general assembly that a spouse who is
economically disadvantaged, relative to the other spouse, be
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rehabilitated whenever possible by granting of an order for the
payment of rehabilitative, temporary support and maintenance.
Where there is such relative economic disadvantage and rehabilitation
is not feasible in consideration of all relevant factors, including those
set out in this subsection, then the court may grant an order for
payment of support and maintenance on a long-term basis or until
death or remarriage of the recipient except as otherwise provided in
subdivision (a)(3). Rehabilitative support and maintenance is a
separate class of spousal support as distinguished from alimony in
solido and periodic alimony. In determining whether the granting of
an order for payment of support and maintenance to a party is
appropriate, and in determining the nature, amount, length of term,
and manner of payment, the court shall consider all relevant factors,
including:
(A) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit
sharing or retirement plans and all other sources;
(B) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and
the necessity of a party to secure further education and training to
improve such party’s earning capacity to a reasonable level;
(C)The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek
employment outside the home because such party will be custodian
of a minor child of the marriage;
(G) The separate assets of each party, both real and personal, tangible
and intangible;
(H) The provisions made with regard to the marital property as
defined in § 36-4-121;
(I) The standard of living of the parties established during the
marriage;
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(J) The extent to which each party has made such tangible and
intangible contributions to the marriage as monetary and homemaker
contributions, and tangible and intangible contributions by a party to
the education, training or increased earning power of the other party;
(K) The relative fault of the parties in cases where the court, in its
discretion, deems it appropriate to do so; and
(L) Such other factors, including tax consequences to each party, as
are necessary to consider the equities between the parties.
Although the law clearly favors rehabilitative alimony, we recognize that a trial court has
wide discretion in determining whether an award of alimony should be rehabilitative or in futuro.
Appellate review of findings of fact by the trial court are de novo upon the record accompanied
by a presumption of the correctness of the findings. See Tenn. R. App. P. 13(d). See also
Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App.1989) (holding that the amount of
alimony awarded is largely a matter left to the discretion of the trial court, and the appellate
courts will not interfere except in the case of an abuse of discretion). The trial court is required
to consider the factors, supra, set forth at Tenn.Code Ann. §36-5-101(d)(1)(A)-(L).
In its Order for Absolute Divorce, the trial court ordered Mr. Smith to pay Ms. Smith
$3,000 per month in alimony in futuro. The trial court’s decision was based upon its finding that
there is a great disparity in the incomes of the parties, with Ms. Smith making about 16% of Mr.
Smith’s salary. The trial court also noted that the Ms. Smith enjoyed a high standard of living,
which should not be disturbed because of Mr. Smith’s infidelity. We find ample evidence in the
record to support the trial court’s findings. In addition, the trial court noted in its Order that it
had reviewed the entire record in this matter. The record indicates that Mr. Smith and Ms. Smith
were married for twenty-four years. Ms. Smith is forty-three years old. She has a Master’s
Degree, and is employed as a school teacher. Additionally, there is testimony that Ms. Smith
suffers from a genetic heart condition, spastic colon, and migraine headaches. Because of her
profession, which is woefully underpaid, her age, her education, her health, her standard of
living, and the disparity between the parties’ respective earning potentials, we hold that the award
of alimony in futuro was predicated upon a finding that Ms. Smith cannot be economically
rehabilitated. T.C.A. § 36-5-101(d)(1). A review of the entire record indicates that the trial court
did not abuse its discretion in awarding alimony in futuro in the amount of $3,000 per month.
The trial court erred by holding Defendant Riley Dean Smith
in contempt for not providing Deborah Bowers Smith
with a comparable vehicle to replace the vehicle
she intentionally wrecked.
During the marriage, the parties leased a 2000 Volvo automobile for Ms. Smith’s use.
The vehicle leased for $700 per month. On March 24, 2001, Ms. Smith was involved in a one-
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vehicle accident, which totaled the Volvo.2 On April 24, 2001, wife filed a Motion for Provision
of Vehicle, requesting a vehicle comparable to the 2000 Volvo. The trial court entered an Order
on April 27, 2001 on several temporary issues. Husband was ordered to “maintain all of the
health insurance, all of the marital debts and the mortgage payments pending hearing on this
case.” The trial court’s Order makes no reference to Ms. Smith Motion for Provision of Vehicle
and does not order Mr. Smith to procure a comparable vehicle for Ms. Smith.
Ms. Smith argued that the lease on the vehicle should be included in the term “marital
debts.” While we agree that the $700 per month lease amount should have been included in
marital debts, we note that that particular debt was paid when the insurance company covered the
loss of the Volvo. Since that marital debt was paid, Mr. Smith had no further obligations to
maintain it. And since the court never issued a mandate that Mr. Smith was to purchase another
Volvo, Mr. Smith cannot be held in contempt for failure to do so. In fact, we find that Mr. Smith
did more than the court required when he gave Ms. Smith use of his daughter’s vehicle and
purchased a used Mazda for his daughter to replace the vehicle given to Ms. Smith.
For the foregoing reasons, we reverse the Order of the trial court finding Mr. Smith in
contempt and the punishment therefor.
The trial court erred by failing to permanently
enjoin Wife from harassing Husband.
On February 23, 2001, the trial court issued a Temporary Restraining Order, which
enjoined Ms. Smith from harassing Mr. Smith. This order was dissolved on April 27, 2001 at
which time the court noted that there was a mutual restraining order in the parenting plan that
would apply to both parties.
In his testimony, Mr. Smith alleged that Ms. Smith made harassing phone call to his
home and work. From our review of the record, we find that Mr. Smith has now obtained an
unlisted telephone number and that he is no longer employed by Jones. These changes, in
conjunction with the mutual restraining order in the parenting plan, render this issue moot and,
therefore, without merit.
In sum, the order of the trial court amending the division of marital property is reversed,
and the final decree of the court, as to the division of marital property and the award of alimony
in futuro, is affirmed. The order of the trial court holding appellant in contempt of court and the
punishment therefor is reversed. The order of the trial court denying injunctive relief to appellant
is affirmed. The case is remanded to the trial court for such further proceedings as may be
necessary. Costs of the appeal are assessed one-half to appellant, Riley Dean Smith, and his
surety, and one-half to appellee, Deborah Bowers Smith.
2
Mr. Smith alleges that Ms. Smith intentionally wrecked the vehicle. However, upon review of the entire
record, we do not find b y a preponderance o f the evidence that the acciden t was intentional.
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____________________________________
W. FRANK CRAWFORD, PRESIDING
JUDGE, WESTERN SECTION
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