Hill v. Hill ( 1999 )

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
D A V I D H I L L ) H A M B L E N C O U N T Y
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v . ) H O N . K I N D A L L T . L A W S O N ,
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P A M E L A G A Y E H I L L )
) A F F I R M E D A S M O D I F I E D
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.
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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.
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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 .
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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 .
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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
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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
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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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