Franklin v. Franklin

746 S.W.2d 715, 1987 Tenn. App. LEXIS 3101
CourtCourt of Appeals of Tennessee
DecidedDecember 4, 1987
StatusPublished
Cited by13 cases

This text of 746 S.W.2d 715 (Franklin v. Franklin) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Franklin, 746 S.W.2d 715, 1987 Tenn. App. LEXIS 3101 (Tenn. Ct. App. 1987).

Opinion

OPINION

LEWIS, Judge.

This is an appeal by defendant, John David Franklin, from the trial court’s award of an absolute divorce to plaintiff, Patricia Ward Franklin, the amount and duration of alimony in futuro awarded, and the award of attorney’s fees.

Plaintiff filed her complaint in which she sought, inter alia, a divorce from bed and board. Defendant answered, denying all material allegations of the complaint, and filed a counter-claim in which he sought, inter alia, an absolute divorce.

Following an evidentiary hearing the trial court found that “reconciliation is not possible and therefore, the plaintiff is awarded an absolute divorce from the bonds of matrimony pursuant to T.C.A. § 36-4-102(a)(l) rather than a divorce from bed and board.”

The trial court first approved a partial settlement agreement entered into between the parties prior to trial, after finding that it made “adequate and sufficient provisions for custody and maintenance of the parties’ minor children and for the equitable settlement of property rights between the parties.”

The trial court then awarded periodic alimony to plaintiff of $15,000 per year and ten (10%) percent of any bonus received by the defendant, both for eleven years. He also awarded plaintiff additional alimony of $5,000 for the partial payment of attorney’s fees incurred by her in this suit.

Defendant’s first issue is: “The Court erred in awarding the divorce to Mrs. Franklin.”

He argues not only that the evidence preponderates against the trial court’s awarding a divorce to plaintiff but that the evidence preponderates in favor of the trial court’s awarding the divorce to him.

Our review of the record fails to disclose any evidence on which the defendant would be entitled to a divorce from plaintiff. To the contrary, there is ample evidence in the record to support the trial court’s award of a divorce to plaintiff.

In 1986, without any prior warning, defendant came to plaintiff and told her he wanted a divorce. Defendant told plaintiff that he loved another woman and had never loved plaintiff. He removed his wedding band, moved out of the parties’ bedroom, and ceased having relations with plaintiff. Defendant verbally abused plaintiff and told her he would find his love elsewhere.

When he was unable to persuade plaintiff to obtain a divorce, he employed an attorney. He had this attorney draw a settlement agreement which defendant proposed that he and plaintiff should enter into. He then moved from the parties’ home into an apartment. He threatened to quit his employment and squander all of the parties’ assets and stated to plaintiff that he would no longer provide her with support. He admitted at trial to a frequent association with a woman he claimed he loved.

We find no merit to defendant’s first issue.

By his second issue, defendant says the “trial court erred in its award of periodic alimony.”

The trial court awarded plaintiff $15,000 per year for eleven years and ten (10%) percent of any bonus received by defendant from his employment for a like period.

Tennessee Code Ann. § 36-5-101 provides in pertinent part as follows:

[717]*717(a)(1) Whether the marriage is dissolved absolutely, or a perpetual or temporary separation is decreed, the court may make an order and decree for the suitable support and maintenance of either spouse by the other spouse, or out of his or her property, ... according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court’s control; and, on application of either party, the court may decree an increase or decrease of such allowance only upon a showing of a substantial and material change of circumstances.
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(d) It 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. 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 the death or remarriage of the recipient....

Tennessee Code Ann. § 36-5-101(d) provides that the court in setting alimony “shall consider all relevant factors,” including the many factors set forth in § 36-5-101(d).

We first consider the “relative earning capacity” of the parties. The record shows that plaintiff is presently working only part-time but that she is a pharmacist and has an earning capacity of between $22,000 and $32,000 per year. The defendant is a plastic surgeon, employed by a plastic surgery group in Chattanooga, Tennessee. In 1986, his salary was $112,000 plus a bonus of $70,000. He received an additional $8,000 to $10,000 from a rehabilitative center that is operated as a part of his medical practice. He received an auto allowance of $4,200 and contributions to his pension plan in excess of $20,000. He also received a $7,000 annual allowance for travel to medical meetings and conventions.

Discounting the auto allowance, contributions to his pension plan, and travel allowance, defendant still had an income in excess of $190,000 for 1986.

The record does not show the earning capacity of the defendant but, based upon his 1986 income, plaintiff has an earning capacity of less than seventeen (17%) percent of defendant’s.

The parties’ relative education is also a factor to be considered. Defendant had completed his basic medical studies and plaintiff had completed pharmacy school when they married in 1966.

Defendant, upon completion of medical school, pursued a general surgery residency for approximately two years. He then served for two years in the Air Force. After completion of his tour of duty in the Air Force, he completed his general surgery residency. Upon completion of the general surgery residency, he pursued and completed a plastic surgery residency. In 1978, accompanied by his family, he went to Australia for a year’s training in microsurgery. The defendant has completed at least nine years of graduate studies in addition to his basic medical education.

The plaintiff pursued no graduate studies. The parties were married for twenty years and, from the date of her graduation until 1978, plaintiff worked as a pharmacist.

So far as the record shows the parties had no separate property and entered into a settlement agreement which divided the marital property on an approximately equal basis.

Included in the property received by plaintiff was certain home furnishings, silver, china, furs, jewelry, her IRA account, a $62,500 interest in defendant’s pension plan, and a 1983 Toyota automobile. The proceeds of the IRA and pension plan cannot be withdrawn until plaintiff, who is forty-two years of age, is fifty-four years of age.

[718]*718The parties’ home is to be sold and each will receive one-half of the net proceeds, projected to be approximately $85,000 each.

The parties enjoyed a rather lavish standard of living.

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Bluebook (online)
746 S.W.2d 715, 1987 Tenn. App. LEXIS 3101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-franklin-tennctapp-1987.